%fH 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/criminallawOObeal 


A 


SELECTION  OF  CASES 


OTHER  AUTHOHITIES 


UPON 


CRIMINAL    LAW. 


BY 

JOSEPH   HENRY   BEALE,  Jr., 

ASSISTANT    PROFESSOR   OF    LAW   IN    HARVARD   UNIVERSITT. 


CAMBRIDGE: 

HARVARD  LAW  REVIEW  PUBLISHING  ASSOCIATION. 
1894. 


Copyright,  1894, 
Bt  Joseph  Hbnbt  Beale,  J& 


JuH.N  Wilson  and  Som,  Cambridob,  U.S.A. 


PREFACE. 


This  collection  of  cases  is  chiefly  intended  for  the  use  of 
classes  in  the  schools.  That  students  may  get  the  benefit  to 
be  derived  from  studying  cases,  it  is  necessary  to  omit  head- 
notes.  In  order,  however,  that  the  collection  may  be  useful  to 
the  lawyer  in  practice,  an  index  has  been  added,  which  is 
intended  to  enable  one  quickly  to  find  the  authorities  upon  any 
subject  herein  contained. 

Experience  shows  that  a  class  studying  such  a  collection  of 
cases  under  the  superintendence  of  an  instructor  is  by  no  means 
inclined  to  give  too  much  weight  to  the  mere  decision  of  a  case. 
But  those  who  may  study  this  book  without  the  help  of  a  teacher 
must  be  warned  not  to  regard  as  law  the  decision  of  every  case 
here  printed.  The  course  of  study  to  be  pursued  involves  a 
determination  of  the  point  decided,  a  careful  consideration  of 
the  reasons  which  led  the  court  to  its  decision,  a  comparison 
of  these  reasons  with  those  which  were  urged,  or  might  have 
been  urged,  on  the  opposite  side,  and  an  independent  solution  of 
the  question  by  the  student.  The  object  of  study  is  not  only  to 
gain  familiarity  with  the  legal  principles  usually  involved  in 
criminal  cases,  but  also  to  build  up  a  legal  mind  —  to  acquire 
the  science  of  legal  reasoning,  and  the  faculty  of  sound  legal 
common-sense. 

One  or  two  of  the  cases  are  now  for  the  first  time  printed. 
They  are  taken  from  a  contemporary  manuscript,  in  the  library 
of  the  Harvard  Law  School,  entitled  "Anonymous  Reports 
temp.  Eliz.  and  Jac,  vol.  II."     The  manuscript  is  one  of  two 


vi 


PREFACE. 


presented  to  the  library  in  1835,  by  J.  J.  Wilkinson,  Esq., 
of  tlie  Temple,  London,  through  Judge  Story,  then  Dane  Pro- 
fessor. It  contains,  among  other  reports,  cases  in  the  King's 
Bench  during  the  first  ten  years  of  James  I.  The  reports  for 
the  first  five  terms  are  identical  with  those  at  the  beginning  of 
Croke's  James  ;  the  remainder  of  them  have  never  been  printed. 
Upon  a  comparison  of  these  reports  with  other  reports  which 
have  been  printed  of  some  of  the  cases,  the  reporter  seems  to 
have  been  careful  and  accurate,  and  fuller  and  more  graphic 
than  his  contemporaries.  The  reports  appear  to  have  been  re- 
garded with  favor;  another  manuscript  copy,  covering  some  of 
the  years,  is  in  the  Social  Law  Library,  Boston. 

JOSEPH  HENRY  BEALE,  Jr. 
Cambbidge,  September  1, 1894. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

Paok 

Sources  of  the  Criminal  Law 1 


CHAPTER  H. 
Criminal  Procedure 10 

CHAPTER  m. 
The  Indictment •      18 

CHAPTER  IV. 
Former  Conviction  or  Acquittal 67 

CHAPTER  V. 
The  Criminal  Act 95 

CHAPTER  VI. 
The  Criminal  Intent 174 

CHAPTER  VII. 
Intent  as  Affected  by  Circumstances 231 

CHAPTER  Vin. 
Intent  in  Statutory  Offences     .....    284 

CHAPTER  IX. 
Justification 311 


Paob 

372 


yiii  TABLE   OF  CONTENTS. 

CHAPTER  X. 

PARTIK9   IK   CrIMB  

CHAPTER  XI. 
Jurisdiction  ovkr  Offences ^^° 

CHAPTER  XU. 
Crimes  against  tuk  Person ^1^ 


LARCKNr 


Embezzlement 


CHAPTER  XIII. 


CHAPTER  XIV. 


488 


706 


CHAPTER  XV. 
Obtaining  Property  by  Falsk  Pretences 718 

CHAPTER  XVI. 
Receiving  Stolen  Property 758 

CHAPTER  XVII. 
Crimes  against  the  Dwelling-house 780 

CHAPTER  XVIII. 
Criminal  Conspiracy 801 

CHAPTER  XIX. 
Nuisance 842 

CHAPTER  XX. 

CONTEMIT    AND    Dl.SBARMENT 854 


TABLE  OF  CONTENTS.  ix 

CHAPTER  XXr. 
Terbitorial  Jurisdiction a<)5 


CHAPTER  XXII. 
Extradition       939 


APPENDIX 959 

INDEX 971 


TABLE   OF   CASES. 


A. 

Adams,  C.  v.  (114  Mass.  323) 

II.  V.  (K.  &  U.  225) 
(1  F.  &  F.  86) 

V.  S.  (45  N.  J.  L.  448) 
Alderman,  C.  w.  (4  Mass.  477) 
Allen,  S.  V.  (47  Conn.  121) 
Anderson,  R.  t-.  (11  Cox,  198) 
Anon.  (30  &  31  E.  1,  108) 

(11  &  12  E.  3,  640) 

(39  E.  3,  7) 

(Lib.  Ass.  137) 

(Lib.  Ass.  137) 

(7  H.  4,  43) 

(13E.  4,  9) 

(3  H.  7,  12) 

(4  H.  7,  5) 

(11  H.  7,1) 

(13  H.  7,  14) 

(21  H.  7,  14) 

(21  H.  7,  39) 

(19  H.  8,  2) 

( l^yer,  5) 

(Dyer,  99) 

(Moore,  660) 

(2  Leon.  12) 

(Anderson,  114) 

(Comb.  46) 

(Kel.  31) 

(Kel.  35) 

(Kel.  52) 

(Kel.  58) 

(12  Mod.  342) 

(Fost.  C.L.4.39) 

(R.  &  R.  489) 

(1  Cox,  250) 
Articles  of  Inquest  (Lib.  Ass. 
Asher,  S.  v.  (50  Ark.  427) 
Ashton's  Case  (12  Mod.  256) 
Ashwell,  R.  V.  (16  Cox,  1) 
Atkinson,  R.  v.  (2  East,  P.  C. 

B. 


138) 


673) 


Page 
204 
720 
777 
679 
70 
394 
895 

385  n. 
488 

281  n. 
272 
514 
595 
638 
623 
596 
797 
201 
524 
346 
490 
524 
781 
782 

371  n. 
782 
96 
273 
615 
377 
329 
843 
284 
40 
158 
817 
229 
392 
566 
660 


Bailey,  R.  v.  (R.  &  R.  1)  280 

Bamber,  R.  v.  (5  Q.  B.  279)  356 

Banks,  R.r.  (R.  &R.  441)  6.32 

Bannen,  R.  v.  (2  Moody.  809)  379 

Barnard.  R.  v.  {1  C.  &  P.  784)  727 

Barnes,  R.  v.  (8  Cox,  129)  710 
Barrow,  R.  v.  (L.  R.  1  C.  C.  R.  166)  455 

Barrv,  C.  v.  (125  Mass.  390)  608 


Page 

Bass,  R.  V.  (Leach,  251)  631 

Bazeley's  Case  (Leach,  835)  625 

Bean,  C.  y.  (11  Cush.  414)  38 

Beaton,  S.  v.  (79  Me.  314)  49 
Beatty  v.  Gillbanks  (15  Cox,  138)        105 

Beecham,  R.  v.  (5  Cox,  181)  697 

Berry,  C.  v.  (99  Mass.  428)  714 

Bingley,  R.  «;.  (R.  &R.  446)  381 

Birney,  S.  y.  (8()h.  230)  303 

Black,  S.  V.  (75  Wis.  490)  723 
Blackham,  B,.  v.  (2  East,  P.  C.  711)      202 

Blake,  R.  v.  (3  Burr.  1731)  102 

Boyce,  R.  v.  (1  Moody,  29)  182 

Boynton,  C.  v.  (2  All.  160)  806 

Bradshaw,  R.  v.  (14  Cox,  83)  146 

Breese  v.  S.  (12  Oh.  St.  146)  386 

Brennan  y.  P.  (15  111.  511)  74 

Brooks,  C.  V.  (99  Mass.  434)  364 

Brown,  R.  v.  (14  Cox,  144)  889 

S.  y.  (3  Murphy,  224)  19 

Bruce,  R.  v.  (2  Cox,  262)  202 

Bryan,  R.  v.  (1  Cox,  312)  729 

Buckmaster,  R.  v.  ( 16  Cox,  339)  663 

Bunce,  R.  j;.  (IF.  &F.  523)  651 

Burke,  C.  u.  (105  Mass.  376)  457 

Burnett,  R.  v.  (4  M.  &  S.  272)  104 


Cabbage,  R.  v.  (R.  &  R.  292)  682 

Caldwell,  Resp.  v.  (1  Dall.  150)  177 

Callaghan,  C.  v.  (2  Va.  Cas.  460)  116 

Calvi,  R.  i^.  (lOCox,  481  n.)  80 

Carr,  R.  r.  (15  Cox,  131  n.)  774 

Carrier's  Case  (14  E.  4,  9)  638 

Carter,  S.  v.  (3  Dutch.  499)  407 

Cart  Wright's  Case  (114  Mass.  230)  867 

Case,  R.v.{i  Cox.  220)  435 

Castell  V.  Bambridge  (2  Stra.  854)  420 

Castro,  R.  v.  (L.  R.  9  Q.  B.  230)  856 

r.  R.  (6  App.  Cas.  229)  56 

Chamberlain,  R.  v.  (10  Cox,  486)  187 

Cheafor,  R.  v.  (5  Cox,  367)  492 

Chissers,  R.  v.  (T.  Ray.  275)  615 

Choice  V.  S.  (31  Ga.  424)  269 

Churchill,  C.  v.  (2  Met.  118)  6 

Claasenr.  U.  S.  (142U.  S.  140)  65 

Clair,  C.  V.  (7  All.  525)  93 
Clarence,  R.  v.  (16  Cox,  611,  22  Q.  B. 

D.  23)  438 

Clark,  U.  S.  v.  (31  Fed.  710)  319 

Clayton,  R.  v.  (1  C.  &  K.  128)  388 


zu 


TABLE  OF  CASES. 


CoUberg,  C.  v.  (119  Mass.  350) 
Collins,  R.  1^.  (y  Cox,  4y7) 
Compton,  R.  r.  (Lib.  Ass.  97) 
Conde,  R.  v.  (10  Cox,  647) 
Cook,  P.  V.  (39  Mich.  236) 
Coombs,  S.  V.  (55  Me.  477) 
Cooper's  Case  (Cro   Car.  544) 
Copp.  S.  i:  (15  N.  H.  212) 
Creighton  c.  C.  (84  Ky.  103) 
Cross,  R.  (•.  (2C.  &P.  483) 
Crouther's  Case  (Cro.  Kliz.  654) 
Cruiksl.ank,  U.  S.  v.  (92  U.  S.  542) 
Crump  r.C.  (84  Va.  927) 
R.  V.  (1  C.  &P.  658) 
Crutcliley,  R.  v.  (5  C.  &  P.  133) 
CuUom,  K.  V.  (L.  R.  2  C.  C.  K.  28) 


Page 

148 
137 
316 
424 
345 
593 
347 
865 
339 
844 
95 
28 
833 
685 
367 
707 


D. 

Dadson,  R.  v.  (4  Cox,  368)  317 

Daley,  C.  v.  (148  Mass.  11)  275 

])alloway,  R.  y.  (2  Cox,  273)  166 

Damon,  S.  v.  (2  Tyler,  387)  88 

Damon's  Case  (6  Me.  148)  20 

Davies,  R.  v.  (Leach,  876)  785 

Davis,  R.  V.  (5  Cox,  237)  42 

(14  Cox,  563)  262 

(15  Cox, 174)  171 

U.  S.  V.  (2  Sumn.  482)  398 

Deane.  R.  d.  (5  Cox,  601)  69 

Dee,  R.f.  (15  Cox,  579)  456  «. 

Delaval,  R.  v.  (3  Burr.  1434)  101 

Detroit  Wliite  Lead  Works,  P.  v. 

(82  Midi.  471)  851 

Dickinson,  R.  t,-.  (R.  &  R.  420)  684 

Dobbs's  Case  (2  East,  P.  C.  613)  181 

Dodge,  S.r.  (81  Me.  391)  49 
Dolan,  R.  v.  (6  Cox,  449;  Dears.  436)  765 

Donahue,  C.  v.  (148  Mass.  629)  353 

Donaldson,  S.  v.  (32  N.  J.  L.  151)  828 

Donnelly,  S.  i'.  (69  la.  705)  338 

Donovan,  R.  v.  (4  Cox,  401)  430  n. 

Dowly,  R.  u  (6  Cox,  463)  261 

Downes,  R.  r.  (13  Cox,  111)  195 

Drew,  C.v.  (19  Pick.  179)  744 

Dudley,  R.  v.  (16  Cox,  624,  11  Q.  B. 

D.  273)  357 

Dugdale  r.  R.  (1  E.  &  B  435)  221 

Dykes,  R.  V.  (16  Cox,  771)  274 


E. 


Eckert,  C.  v.  (2  Browne,  249)  110 

Edmonds  r.  S.  (70  Ala.  8)  511 

Edwards,  R.  v.  (8  Mod.  320)  804 

(13  Cox,  384)  612 

Eggington's  Case  (2  East,  P.  C.  666)  154 

Esop,  R.  V.  (7  C.  &  P.  456)  282 


F. 

Faulkner,  R.  v.  (13  Cox,  550) 
Felter,  S.  o.  (25  la.  67) 


213 

238  n. 


Page 

Fidling,  R.  V.  (MS.)  783 

Finlayson,  R.  v.  (3  N.  S.  W.  301)  666 
Fitchburg  R.  R.,  C.  v.  (120  Mass.  372)    63 

Flanagan  i;.  P.  (52  N.  Y.  467)  241 

Flowers,  R.  i;.  ( 16  Cox,  33)  674 

Foley,  R.  v.  (26  L.  R.  Ire.  299)  681 

Foster,  C.  v.  (107  Mass.  221)  715 

Fox,  U.  S.  V.  (95  U.  S.  670)  227 

Francis,  R.  i;.  (2  Stra.  1015)  699 

Franklin,  R.  v.  (15  Cox,  163)  203 

Fray's  Case  (1  East,  P.  C.  236)  477 

Friend,  R.  v.  {R.  &  R.  20)  190 


G. 


Gamlen,  R.  r.  (1  F.  &  F.  90)  262 

Garbutt,  P.  v.  (17  Mich.  9)  265 

Gardner,  P.  v.  (2  Johns.  477)  698 

R  V.  (9  Cox,  253)  686 

Gessert,  S.  v.  (21  Minn.  369)  403 

Glover  v.  C.  (86  Va.  382)  133 

Goodenow,  S.  v.  (65  Me.  30)  309 

Goodhall,  R.  v.  (R.  &  R.  461)  725 

Gore's  Case  (9  Co.  81  a)  209 

Goss,  R.  u.  (8  Cox,  202)  737 

Gray,  R.f.  (1  Stra.  481)  784 

Green,  C.  w.  (17  Mass.  616)  70 

(2  Pick.  380)  139 

Greenwood,  R.  v.  (7  Cox,  404)  424 

V.  S.  (64  Ind.  260)  89  n. 

Grey's  Case  (KeL  64)  463 

Griffin,  R.  i;.  (11  Cox,  402)  315 


H. 


Hadley,  C.  r.  (11  Met.  66)  372 

i>.  S.  (55  Ala.  31)  469 

Haines,  R.  v.  (2  C.  &  K.  368)  170 

Hall,  R.  V.  (3  C.  &  P.  409)  281 

(3  Cox,  245)  696 

Hall's  Case  (1  Vent.  169)  842 

Halliday,  R.  r.  (61  L.  T.  701)  427 

Hands,  R.  v.  (16  Cox,  188)  614 

Hard  wick,  in  re  (12  Q.  B.  D.  148)  881 

Harkins,  C.  v.  (128  Mass.  79)  752 

Harmon,  U.  S.  v.  (45  Fed.  414)  180 

Harrington,  C.  v.  (130  Mass.  36)  31 

Hartnett,  C.  v.  (3  Gray,  450)  701 

Haskins  v.  P.  (16  N.  Y.  344)  53 

Haynes,  U.  v.  (1  F.  &  F.  666)  234 

Hays,  C.  v.  (14  Gray,  62)  711 

Headse,  R.  v.  (R.  &  R.  160)  706 

Hendrickson  f.  C.  (85  Ky.  281)  430 

Herman  v.  P.  (131  111.  694)  68  n. 

Hersey,  C.  v.  (2  All.  173)  183 

Hewlett,  R.  V.  (1  F.  &  F.  91 )  329 

Hildebrand  v.  V.  (56  N.  Y.  394)  619 

Hines,  R.  v.  (13  Cox,  111  n.)  197  n. 
King  Quong  Chow,  U.  S.  v.  (53  Fed. 

2.33)  123 

Hirn  .;.  S.  (1  Oh.  St.  15)  25 

Holden,  C.  v.  (9  Gray.  7)  698 

Holland,  R.  ?v(2  Moo.  &  R.  351)  164 

Holloway,  R.  v.  (3  Cox,  241)  692 


TABLE   OF  CASES. 


Xlll 


Page 
Holmes,  U.  S.  v.  (1  Wall,  Jr.  1)  361  n. 
Holmes's  Case  (Cro.  Car.  376)  797 

Hudson,  R.  v.  (8  Cox,  305)  158 

U.  S.  y.  (7  Cranch,  32)  3 

Huggett's  Case  (Kel.  59)  474 

Huggins,  R.  V.  (2  Ld.  Ray.   1574; 

2  Stra.  882)  421  «. 

Hugh,  R.  v.  (30  &  31  E.  1,  529)  16 

Hunt.  C.  V.  (4  Met.  Ill)  821 

Hurst,  P.  V.  (62  Mich.  276)  716 


I. 


Ingles,  S.  V.  (2  Ilayw.  4)  88 

Instan,  R.  v.  (1893,  1  Q.  B.  450)  198 

Isaac's  Case  (2  East,  P.  C.  1031)  799 

Ives,  S.  V.  (13  Ire.  338)  775 


Jackson,  P.  v.  (3  Den.  101)  121 

James,  C.  y.  (1  Pick.  375)  645 

R.  y.  (2  Cox,  227)  41 

Jennison,  R.  v.  (9  Cox,  158)  742 

Jolinson,  S.  v.  (40  Conn.  136)  270 

(32  Tex. 96)  48 
Johnson's  Case  (2  East,  P.  C.  488)        785 

Jones  V.  Leonard  (50  la.  106)  950 

U.  S.  V.  (3  Wash.  C.  C.  209)  368 
Journeyman  Tailors,  R.  v.  (8  Mod.  10)  820 


K. 


115 

182 
943 
939 
165 


Kanavan's  Case  (1  Me.  226) 
Kelly,  R.  y.  (1  Cr.  &  D.  186) 
Kentucky  t;.  Dennison  (24  How.  66) 
Ker  y.  Illinois  (119  U.S.  436) 
Kew,  R.  u.  (12  Cox,  355) 
Keyn,  R.  v.  (2  Ex.  D.  63 ;  13  Cox,  403)  897 
Kilham,  R.  v.  (L.  R.  1  C.  C.  R.  261)  718 
King  y.  P.  (83  N.  Y.  587)  847 

Knapp,  C.  V.  (9  Pick.  49G)  383 

Knight,  R.  v.  (2  East.  P.  C.  510)  220 

S.  V.  (2  Hayw.  109)  406 

Knowlton,  C.  v.  (2  Mass.  530)  1 

KnoxviUe,  S.  v.  (12  Lea,  146)  313 

Kostenbauder,  C.  i;.  (20  Atl.  995)  814 


L. 

Lannan,  C.  v.  (153  Mass.  287)  521 

Lascellcs  v.  Georgia  (148  U.  S.  537)  952 

Latimer,  R.  v.  (16  Cox,  70)  217 

Lavender,  R.  v.  (2  East,  P.  C.  566)  532 

Lawrence,  S.  v.  (57  Me.  574)  258 

Ledginham,  R.  «.  (1  Mod.  288)  36 

Lee  Kong,  P.  v.  (95  Cal.  666)  142 

Leigh's  Case  (2  East,  P.  C.  694)  632 

Leighton  v.  P.  (88  N.  Y.  117)  472 

Le  Mott's  Case  (Kel.  42)  783 

Leonard,  C.  n.  (140  Mass.  473)  778 

Lesley,  R.  v.  (Bell,  220;  8  Cox, 269)  311 


Pagro 

Lester,  C.  v.  (129  Mass.  101)  705 

Levett's  Case  (Cro.  Car.  538)  279 

Levi  V.  Levi  (9  C.  &  P.  239)  841  n. 

Lewis,  S.  V.  (2  Hawks,  98)  89 

Lindsey  v.  S.  (38  Oh.  St.  507)  404 

Liscomb,  P.  v.  (60  N.  Y.  559)  61  n. 

Little,  R.  w.  (10  Cox,  559)  657 

Lombard's  Case  (Lib.  Ass.  276)  818 

Loud,  C.  V.  (3  Met.  328)  72 

Lovell,  R.  V.  (8  Q.  B.  D.  185)  612 

Lowe,  R.  V.  (3  C.  &  K.  123)  192 

Lucas,  S.  V.  (55  la.  321)  396 

Lynn,  R.r.  (Leach,  497)  103 

Lyons,  R.  v.  (Leach,  185)  784 


M. 


McCarty,  Resp.  v.  (2  Dall.  86)  364 

S.  1-.  (22  Atl.  282)  34 

McCord  V.  P.  (46  N.  Y.  470)  162 

McDaniel,  R.  v.  (Leach,  44)  421 

McDaniel's  Case  (Post.  C.  L.  121)  152 

McDonald,  C.  v.  (5  Cush.  365)  141 

McGowan,  P.  v.  ( 17  Wend.  386)  90 
McGrowther's  Case  (Post.  C.  L.  13)  273 
McNaghten's  Case  (10  CI.  &  F.  200)     231 

Mace,  S.  v.  (76  Me.  64)  32 

Macloon,  C.  v.  (101  Mass.  1)  409 

Madox,  R.  u.  (R.  &  R.  301)  641 

Maher  v.  P.  (10  Mich.  212)  482 

Malin,  Resp.  v.  (1  Dall.  33)  127 

Manchester.  C.  v.  (152  Mass.  230)  930 

Mansfield,  R.  v.  ( C.  &  M.  140)  50 

Marshall,  C.  w.  (11  Pick.  350)  5 

Martin,  R.  v.  (R.  &,  R.  196)  156 

(2  Moody,  123)  146 

Mash,  C.  V.  (7  Met.  472)  304 

Mason  v.  P.  (26  N.  Y.  200)  788 

Merry  v.  Green  (7  M.  &  W.  623)  548 
Middleton,  R.  v.  (L.  R.  2  C.  C.  R.  38)  617 
Mifflin  V.  C.  (5  W.  &  S.  461)              807  n. 

Miller,  C.  r.  (139  Pa.  77)  849 

R.  V.  (6  Cox,  353)  769 

Mills,  R.  V.  (7  Cox.  263)  727 

Mink,  C.  V.  (123  Mass.  422)  20G 

Mitchell,  R.  v.  (2  Moody,  120)  378 

Mitchum  v.  S.  (45  Ala.  29)      '  616 

Moore  v.  P.  (50  Hun,  356)  453 

R.  V.  (Leach,  314)  658 

S.  y.  (12N  H.  42)  224 

Morfit,  R.  y.  (R.  &  R.  307)  683 

Morly's  Case  (Kel.  53)  473 

Morrill,  C.  v.  (8  Cush.  571)  160 

Morris,  R.  v.  ( 10  Cox,  480)  82 
Morris  Run  Coal  Co.  v.  Barclay  Coal 

Co.  (68  Pa.  173)  839 

Morse  v.  S.  (6  Conn.  9)  223 

Mucklow.  R.  y.  (1  Moody,  160)  547 

Muilaly  V.  P.  (86  N.  Y.  365)  502 

Murphy,  R.  y.  (1  Cr.  &  D.  20)  318 

Murray's  Case  (1  Wils.  299)  854 
Murton,  R.  v.  (3  F.  &  F.  492)            426  n. 

Myers  y.  S.  (1  Conn.  602)  302 


XIV 


TABLE  OF   CASES. 


N. 

Napper,  R.  v.  (1  Moody,  44) 

New  Bedford  Bridge,  C.  i;.  (2  Gray, 

339) 
Newburyport  Bridge,  C.  v.  (9  Pick. 

NicholU,  R.  r.  (13  Cox.  75) 
Noble,  S.  r.  (15  Me.  476) 
Norton,  C.  i-.  (11  All.  266) 
Norvai,  K.  v.  (1  Cox,  95) 


o. 

O'Brien,  S.  v.  (81  la.  88) 
O'l)onnell,  R.  i-.  (7  C  &  P.  138) 
O'iMalley,  C  v.  (97  Mass.  584) 


P. 

Parks,  P.  I'.  (49  Mich.  333) 
Parsons  v.  S.  (81  Ala.  577) 
Patterson,  S.  f.  (45  Vt.  308) 
Pear,  U.  v.  (2  East,  P.  C.  685) 
Pearson's  Case  (2  Lew.  144) 
Pembliton,  R.  v.  (12  Cox,  007) 
Penny  i-.  Hanson  (16  Cox,  173) 
Perkins,  C.  u.  (1  Pick.  388) 
Perrigo,  C.  v.  (3  Met.  Ky.  5) 
Phillips,  C.  V.  (Id  Mass.  423) 
Plant,  II.  V.  (7  C.  &P.  575) 
Pocock,  R.  i:  (5  Cox,  172) 
Poulterers'  Case  (9  Co.  55) 
Poyser,  R.  v.  (2  Den.  C.  C.  233) 
Pratt,  R.  1-.  (6  Cox,  373) 
Prav,  C.  V.  (13  Pick.  .359) 
Presnell,  S.  v.  (12  Ire.  103) 
Preston,  R.  v.  (5  Cox,  390) 
Prince,  R.  t-.  (L.  R.  1  C.  C.  R.  150) 
Prius,  C.  V.  (9  Gray,  127) 
Prowes,  R.  v.  (1  Moody,  349) 
Pywell,  R.  r.  (1  Stark.  402) 


Quinn  r.  P.  (71  N.  Y.  561; 


Page 
44 

277 

37 
193 

52 
750 
535 


433 
10 

518 


376 
242 
348 
648 
261 
210 
757  n. 

43 

27 
389 

79 
423 
801 
643 
635 

22 
177 
557 
660 
810 
597 
807 


789 


Riley,  R.  v.  (6  Cox,  88;  Dears.  149) 
Robins,  R.  v.  (Dears.  418) 
Robinson,  Er  parte,  (19  Wall.  505) 

R.  V.  (Bell,  34) 
Roderick,  R.  r.  (7  C.  &  P.  795) 
Rogers.  C.  v.  (7  Met.  500) 

F.v.  (18N.Y.  9) 
Ronkett,  R.  v.  (MS.) 
Rose,  R.  V.  (15  Cox,  540) 
Roth  well,  R.  r.  (12  Cox,  145) 
Rowe,  R.  V.  (Bell,  98) 
Rowlands,  R.  r.  (5  Cox,  4.36) 
Rulofff.  P.  (45N.  y.  213) 
Russell,  S.  V.  (14  R.  I.  506) 
Russett,  R.  V.  (1892,  2  Q.  B.  312) 
Ryan,  C.  v.  (155  Mass.  523) 


s. 


Salmon,  R.  v.  (14  Cox,  494) 
Schmidt,  R.  v.  (10  Cox,  172;  L.  R. 

1  C.  C.  R.  15) 
Schwab  V.  Berggren  (143  U.  S.  442) 
Searing,  R.  v.  (R.  &  R.  350) 
Selway,  R.  v.  (8  Cox,  235) 
Seme',  R.  v.  (16  Cox,  311) 
Sexton,  S.  v.  (3  Hawks,  184) 
Sharpe,  R.  v.  (7  Cox,  214) 
Sharpless,  C.  i'.  (2  S.  &  R.  91) 

R.  I'.  (Leach,  92) 
Shaw,  C.  V.  (4  All.  308) 
Shepnard.  R.  v.  (R.&R.  169) 
Sherman,  S.v.  (16R.  I.  631) 
Shickle,  R.  t;.  (11  Cox,  189;  L.  R. 

1  C.  C.  R.  158) 
Shorter  v.  P.  (2  N.  Y.  193) 


R. 

Ragg,  R.  V.  (8  Cox,  262)  737 

Randolph,  C.  r.  (146  Pa.  83)  134 

Raven,  R.  v.  (Kel.  24)  631 

Reed.  R.  v.  ( C.  &  M.  306)  282  n. 

(0  Cox,  284)  5.36 

(12  Cox,  1)  369 

Renshaw,  R.  v.  (2  Cox.  285)  434 

Revel,  R.v.{\  Stra.  420)  854 

Rew,  R.  V.  (Kel.  26)  163 

Reynolds  ,-.  U.  S.  (98  U.  S.  145)  179 

Richanls.  S.  v.  (39  Conn.  591)  238 

Richardson,  R.  v.  (Leach,  387)  166 

(6  C.  &  P.  3.35)  758 

Riddle,  D.  S.  v.  (6  Cranch,  311)  222 


Page 

591 
656 
882 
721 
127 
235 
264 
842 
343 
481 
562 
807  n. 
392 
39 
671 
543 


189 

769 
14 
491 
700 
465 
45 
175 
113 
611 
501 
174 
341 

496 
3.30 


Sillcm,  Att'y  Gen.  r.  (2  H.  &  C.  431)  139  n 

Silsbee,  C.  v.  (9  Mass.  417)  111 

Simmons  u.  U.  S.  (142  U.  S.  148)  76 
Skipworth,  R.  v.  (L.  R.  9  Q.  B.  230)    856 

Slattery,  C.  v.  (147  Mass.  423)  151 

Slowly,  R.  V.  (12  Cox,  269)  516 

Smith,  C.  v.  (Ill  Mass.  429)  703 

r.  C.  (1  Duv  224)  238  h. 

V.  P.  (25  111.  17)  811 

(53  N.  Y.  Ill)  653 

R.v. (1  Stra.  704)  844 

(1  Cox,  260)  276 

(Dears.  494)  760 

(11  Cox,  210)  192 

S.  r.  (2  Strobh.  77)  468 

(5  Harr.  490)  46 

Solomons,  R.  v.  (17  Cox,  93)  668 

Spurgeon,  R.  v.  (2  Cox,  102}  685 

Stanley  v.  S.  (24  Oh.  St.  166)  605 

Starin  V.  V.  (45  N.  Y.  333)  390 

Stedman,  R.  i;.  (Post.  C.  L.  292)  477 

Steimling,  C.  v.  (27  Atl.  297)  588 

Stephens,  R.  v.  (L.  R.  1  Q.  B.  702)  845 

U.  S.  V.  (8  Sawy.  116)  130 

Stephenson,  C.  v.  (8  Pick.  354)  787 

Stevens,  R.  v.  (5  East,  244)  18  n. 

Steward,  C.  v.  (7  Dane  Ahr.  136)  786 

Stoffer  V.  S.  (16  Oh.  St.  47)  334 

Stone,  C.  V.  (152  Mass.  498)  54 


TABLE  OF  CASES, 


XV 


Page 

Stratton,  C.  y.  (114  Mass.  303)  451 

R.  V.  (21  How.  St.  Tr.  1045)       361  h. 

(1  Cam  p.  549)  157 

Sutton,  R.  V.  (Cas.  t.  Hard.  370)  125 

Swindall,  R.  v.  (2  C.  &  K.  230)  1G7 


T. 


Taylor,  S.  v.  (3  Dutch.  117)  498 

Taylor'8  Case  (1  Vent.  293)  9(5 

Teischer,  Resp.  v.  (1  Dall.  335)  108 

Terry,  ex  parte  (128  U.  S  289)  869 

Thomas,  P.  v.  (3  Hill,  169)  722 

Thompson,  C.  v.  (6  All.  591)  308 

R.  V.  (1  Moody,  80)  477 

V.  S.  (94  Ala.  535)  513 

Thristle.  R.  v.  (3  Cox,  573)  G33 
Thurbom,  R.  u.  (1  Den.  C.  C.  387)        551 

Tinkler.  R.  v.  {\  F.  &  F.  513)  285 

Titus,  C.  V.  (116  Mass.  42)  563 

ToUett,  R.  v.{C.&  M   112)  533 

ToUiver,  C.  v.  (8  Gray,  386)  46 

Tolson,  R.  V.  (23  Q.  B.  D.  168)  286 

Tomson,  R.  v.  (Kel.  66)  462 

Towers,  R.  y.  (12  Cox,  530)  425 

Townley,  R.  v.  (12  Cox,  59)  677 

Towse,  R.  V.  (14  Cox,  327)  283 

Traverse,  C.  v.  (11  All.  260)  47 

Trebilcock,  R.  v.  (7  Cox,  408)  688 

Tucker,  C.  y.  (110  Mass.  403)  800 

Tunnard's  Case  (Leach,  214  ?i.)  640 

Turner,  R.  v.  (13  East,  228)  805 
Tweed,  P.  ex  rel.  v.  Liscomb  (60  N  ,Y. 

559)  61  n. 
Tyler,  R.  v.  (8  C.  &  P.  616)               368  n. 


Vandercomb's  Case  (Leach,  708)  78 

Vane's  Case  (Kel.  14)  44 

Vaux'a  Case  (4  Co.  44  a)  67 


w. 

Wade,  R.  v.  (1  C.  &  K.  739)  758 

Wakcling,  R.  v.  (K.  &  R.  504)  726 

Walker,  P.  v.  (38  Mich.  156)  271 

V.  S.  (63  Ala.  49)  794 

Wall,  er  parte  (107  U.  S.  265)  885 

Walsh  V.  P.  (65  III.  58)  128 

R.  V.  (1  Moody,  14)  505 
Warburton,  R.  v.  (L.  R.  1  C.  C.  R. 

274)  808 

Ward  I'.  P.  (3  Hill,  395)  595 

Watson,  R.  v.  (2  East,  P.  C.  562)  532 

Watts,  R.  r.  (6  Cox,  304)  493 

Webster,  R.  v.  (9  Cox,  13)  676 

Welsh,  R.  y.  (11  Cox,  336)  479 
Wemyss  v.  Hopkins  (L.  R.  10  Q.  B. 

378)  80 

West,  R.  V.  (Dears.  402)  561 

Wheatley,  R.  v.  (2  Burr.  1125)  97 

Whitcomb,  C.  ('.  (107  Mass.  486)  751 

White,  C.  V  (110  Mass.  407)  450 

B.  V  (1  F.  &F.  665)  778 
(6Cox,  213;  Dears.  203)       606 

Wild's  Case  (2  Lew.  214)  347 

Wildenhus's  Case  (120  U.  S.  1)  925 

Wilkinson,  R.  v.  (R.  &  R.  470)  674 

Wilson,  R.  V.  (2  Cox,  426)  41 

Wing,  C.  V.  (9  Pick.  1)  119 

Wody,  R.  V.  (10  E  4,  14)  489 

Wolfstein  v.  P.  (6  Hun,  121)  629 

Wood,  R.  V.  (3  Cox,  453)  551 

Woodward,  R.  v.  (9  Cox,  95)  763 

Wray,  S  v.  (72  N   C  253)  366 

Wright's  Case  (Co.  Lit.  127  a)  145 

Wyckofi,  S.  y  (2  Vroom,  66)  399 


Y. 


Yong's  Case  (4  Co.  40  a)  462 


"  Nothing  is  more  common  than  to  hear  those  who  have  taken 
only  a  superficial  view  of  the  Crown  Law  charge  it  with  number- 
less hardships  and  undistinguishing  rigor;  whereas  those  who 
have  more  fully  examined  it  agree  that  it  wants  nothing  to  make 
it  admired  for  clemency  and  equity,  as  well  as  justice,  but  to  be 
understood.  It  is  so  agreeable  to  reason,  that  even  those  who 
suffer  by  it  cannot  charge  it  with  injustice ;  so  adapted  to  the 
common  good  as  to  suffer  no  folly  to  go  unpunished,  which  that 
requires  to  be  restrained ;  and  yet  so  tender  of  the  infirmities  of 
human  nature,  as  never  to  refuse  an  indulgence  where  the  safety 
of  the  public  will  bear  it.  It  gives  the  Prince  no  power,  but  of 
doing  good ;  and  restrains  the  people  from  no  liberty,  but  of 
doing  evil."  —  Preface  to  Hawkins^  Fleas  of  the  Crown. 


CASES  ON  CRIMINAL  LAW. 


CHAPTER  I. 
SOURCES  OF  CRIMINAL  LAW. 


COMMONWEALTH  v.   KNOWLTON. 
Supreme  Judicial  Court  of  Massachusetts.     1807. 

[Reported  2  Mass.  530.] 

The  indictment  in  this  case  was  found  at  the  Court  of  General  Ses- 
sions of  the  Peace  for  this  county,  May  term,  1803.  It  alleges  that 
there  is  a  certain  river  or  stream  in  this  count}',  which  empties  itself 
into  the  river  Kennebeck,  called  Sandy  River,  up  and  through  which 
said  Sandy  River  salmon,  shad,  and  alewives  have  been  wont  to  pass  to 
the  ponds  adjacent  to  cast  their  spawn,  and  which  river  ought  bj''  law 
to  be  free  from  all  obstructions  whatever ;  yet  that  the  defendant,  not 
ignorant  of  the  premises,  at  Farmington,  in  said  countj-,  on  the  first 
day  of  June,  1801,  with  force  and  arms,  built  and  erected  a  mill-dam 
across  said  Sandy  River,  and  being  owner  and  occupant  thereof,  the 
same  hath  continued  to  the  present  time,  without  makmg  or  providing 
a  sufficient  sluice  or  passage-way  either  through  or  round  the  said  dam 
for  the  said  fish  to  pass  up  as  by  law  he  ought  to  have  done.  By  rea- 
son whereof  the  said  fish  have  been  and  still  are  obstructed  in  their 
passing  up  the  said  river,  "to  the  great  injury  of  the  public,  in  evil 
example  to  all  others  in  like  cases  offending,  against  the  peace  and 
dignit}'  of  the  Commonwealth,  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided." 

Upon  not  guilty  pleaded  at  the  Court  of  Common  Pleas,^  he  was 
convicted  and  sentenced,  and  appealed  to  this  court,  where  at  Septem- 
ber term,  1805,  he  was  again  tried  and  found  guilty. 

After  verdict  the  defendant  moved  in  arrest  of  judgment,"  because 

^  By  statute  passed  March  9,  1804,  all  the  powers  and  duties  of  the  Sessions,  with 
certain  exceptions,  were  transferred  to  the  Courts  of  Common  Pleas  ;  and  all  indict- 
ments, etc.,  then  pending  in  the  Sessions  were  to  be  proceeded  in  and  determined  by 
the  Courts  of  Common  Pleas. 

2  Only  so  much  of  the  case  as  involves  this  ground  for  arrest  is  reprinted. 

1 


2  COMMONWEALTH   V.    KNOWLTON.  [CHAP.  L 

by  law  the  said  indictment  did  not  lie  at  said  Court  of  General  Ses- 
sions of  the  Peace,  and  said  court  last  named  had  by  law  uo  jurisdic- 
tion of  the  offence  charged  in  said  indictment. 

Curia.   The  defendant  moves  in  arrest  of  judgment,  on  two  grounds. 
The  second  objection,  founded  on  the  want  of  jurisdiction  of  the 
Sessions,  has  great  weight. 

The  Court  of  Sessions,  to  whose  jurisdiction  in  criminal  causes  the 
Court  of  Common  Pleas  has  succeeded,  by  statute  of  March,  1804,  was. 
erected  bv  the  statute  of  July  3,  1782,  and  it  is  empowered  to  hear  and 
determine  all  matters  relating  to  the  conservation  of  the  peace,  and 
such  offences  as  are  cognizable  by  them  at  common  law,  or  by  the  acts 
of  the  leo-islature.  If  by  common  law,  mentioned  in  this  statute,  be 
understood  strictly  the  common  law  of  England,  those  words  cannot 
have  any  effect ;  for  the  Sessions  being  created  by  statute  cannot  have 
any  jurisdiction  but  what  is  given  it  by  some  statute.  But,  if  these 
words  import  the  common  law  of  the  Commonwealth,  they  have  an 
extensive  operation  and  are  easily  understood.  Our  ancestors,  when 
they  came  into  this  new  world,  claimed  the  common  law  as  their  birth- 
right, and  brought  it  with  them,  except  such  parts  as  were  judged  in- 
applicable to  their  new  state  and  condition.  The  common  law,  thus 
claimed,  was  the  common  law  of  their  native  country,  as  it  was 
amended  or  altered  by  English  statutes  in  force  at  the  time  of  their 
emigration.  Those  statutes  were  never  re-enacted  in  this  country,  but 
were  considered  as  incorporated  into  the  common  law.  Some  few 
other  English  statutes,  passed  since  the  emigration,  were  adopted  by 
our  courts,  and  now  have  the  authority  of  law  derived  from  long 
practice.  To  these  may  be  added  some  ancient  usages,  originating 
probably  from  laws  passed  by  the  legislature  of  the  colony  of  the 
Massachusetts  Bay,  which  were  annulled  by  the  repeal  of  the  first 
charter,  and  from  the  former  practice  of  the  colonial  courts  accommo- 
dated to  the  habits  and  manners  of  the  people. 

So  much  therefore  of  the  common  law  of  England  as  our  ancestors 
brought  with  them,  and  of  the  statutes  then  in  force,  amending  or  al- 
tering it ;  such  of  the  more  recent  statutes  as  have  been  since  adopted 
in  practice ;  and  the  ancient  usages  aforesaid  may  be  considered  as 
forming  the  body  of  the  common  law  of  Massachusetts,  which  has  sub- 
mitted to  some  alterations  by  the  acts  of  the  provincial  and  State  legis- 
latures, and  by  the  provisions  of  our  Constitution. 

From  these  principles  we  may  conclude  that  the  Sessions  in  England, 
having  at  the  time  of  the  emigration  jurisdiction  of  all  trespasses  (ex- 
cept perhaps  forgery  and  perjury,  see  2  East's  Eep.  18),  which  were 
offences  against  law,  when  the  statute  of  34  Ed.  3,  c.  1,  was  passed, 
giving  the  Sessions  (among  other  things)  the  cognizance  of  all  tres- 
passes ;  our  Court  of  Common  Pleas,  as  successor  of  the  Sessions,  has 
jurisdiction  of  the  same  trespasses  by  the  common  law  of  the  Common- 
wealth ;  and  that  it  has  jurisdiction  of  no  other  trespasses,  unless  de- 
rived expressly  from  some  statute. 


CHAP.  I.]  UNITED   STATES   V.   HUDSON".  3 

The  offence,  of  which  the  defendant  is  indicted,  is  clearly  not  an  of- 
fence at  common  law,  but  it  is  a  new  offence  created  by  the  statute,  on 
which  this  indictment  is  drawn,  as  it  is  not  supposed  that  there  is  any 
other  statute  by  which  the  Sessions  can  have  jurisdiction  ;  the  validity 
of  the  objection  to  judgment  on  this  conviction  must  depend  on  the 
construction  of  the  statute  on  which  it  was  obtained.  In  the  twelfth 
section  it  is  enacted,  that  all  the  fines  imposed  shall  be  recovered  by 
presentment  of  the  grand  jur}',  or  by  action  of  debt.  This  section  docs 
not  expressly,  or  by  necessary  implication,  include  the  Sessions,  for 
the  words  may  be  perfectly  satisfied  by  a  presentment  of  the  grand 
jury  to  this  court.  And  the  Sessions  before  the  statute  of  March, 
1804,  or  the  Common  Pleas  since,  not  having  jurisdiction  at  common 
law,  nor  by  the  express  provisions  of  any  statute,  the 

Judgment  must  be  arrested. 


UNITED   STATES  v.   HUDSON. 
Supreme  Court  of  the  United  States.     1812. 

[Reported  7  Crunch,  32.] 

This  was  a  case  certified  from  the  Circuit  Court  for  the  District  of 
Connecticut,  in  which,  upon  argument  of  a  general  demurrer  to  an  m- 
dictment  for  a  libel  on  the  President  and  Congress  of  the  United  States, 
contained  in  the  "  Connecticut  Currant "  of  the  7th  of  May,  1806,  charg- 
ing them  with  having  in  secret  voted  two  millions  of  doUai's  as  a  pres- 
ent to  Bonaparte  for  leave  to  make  a  treaty  with  Spain,  the  judges  of 
that  court  were  divided  in  opinion  upon  the  question,  whether  the  Cir- 
cuit Court  of  the  United  States  had  a  common-law  jurisdiction  in  cases 
of  libel. 

PinJcney^  Attorney-General,  in  behalf  of  the  United  States,  and 
Dana,  for  the  defendants,  declined  arguing  the  case. 

The  Court  having  taken  time  to  consider,  the  following  opinion  was 
delivered  (on  the  last  day  of  the  term,  all  the  judges  being  present)  by 
Johnson,  J. 

The  only  question  which  this  case  presents  is,  whether  the  Circuit 
Courts  of  the  United  States  can  exercise  a  common-law  jurisdiction  in 
criminal  cases.  We  state  it  thus  broadly  because  a  decision  on  a  case 
of  libel  will  apply  to  every  case  in  which  jurisdiction  is  not  vested  in 
those  courts  by  statute. 

Although  this  question  is  brought  up  now  for  the  first  time  to  be 
decided  by  this  court,  we  consider  it  as  having  been  long  since  settled 
in  public  opinion.  In  no  other  case  for  many  years  has  this  jurisdic- 
tion been  asserted  ;  and  the  general  acquiescence  of  legal  men  shows 
the  prevalence  of  opinion  in  favor  of  the  negative  of  the  proposition. 


4  UNITED   STATES   V.   HUDSON.  lCHAP.  I. 

The  course  of  reasoning  which  leads  to  this  conchision  is  simple, 
obvious,  and  admits  of  but  little  illustration.  The  powers  of  the  gen- 
eral crovernuient  are  made  up  of  concessions  from  the  several  States, 
—  whatever  is  not  expressly  given  to  the  former,  the  latter  expressly 
reserve.  The  judicial  power  of  the  United  States  is  a  constituent  part 
of  those  concessions,  —that  power  is  to  be  exercised  by  courts  organ- 
ized for  the  purpose,  and  brought  into  existence  by  an  effort  of  the 
legislative  power  of  the  Union.  Of  all  the  courts  which  the  United 
Sttates  may,  under  their  general  powers,  constitute,  one  only,  the  Su- 
preme Court,  possesses  jurisdiction  derived  immediately  from  the  Con- 
stitution, and  of  which  the  legislative  power  cannot  deprive  it.  All 
other  courts  created  by  the  general  government  possess  no  jurisdiction 
but  what  is  given  them  by  the  power  that  creates  them,  and  can  be 
vested  with  none  but  what' the  power  ceded  to  the  general  government 
will  authorize  them  to  confer. 

It  is  not  necessary  to  inquire  whether  the  general  government,  in 
any  and  what  extent,  possesses  the  power  of  conferring  on  its  courts 
a  jurisdiction  in  cases  similar  to  the  present.  It  is  enougli  that  such 
jurisdiction  has  not  been  conferred  by  any  legislative  act,  if  it  does  not 
result  to  those  courts  as  a  consequence  of  their  creation. 

And  such  is  the  opinion  of  the  majority  of  this  court ;  for  the  power 
which  Congress  possess  to  create  courts  of  inferior  jurisdiction  neces- 
sarilv  implies  the  power  to  limit  the  jurisdiction  of  those  courts  to  par- 
ticular objects  ;  and  when  a  court  is  created  and  its  operations  confined 
to  certain  specific  objects,  with  what  propriety  can  it  assume  to  itself 
a  jurisdiction  much  more  extended,  in  its  nature  very  indefinite,  appli- 
cable to  a  great  variety  of  subjects,  varying  in  every  State  in  the 
I'nion,  and  with  regard  to  which  there  exists  no  definite  criterion  of 
distribution  between  the  district  and  Circuit  Courts  of  the  same 
district? 

The  only  ground  on  which  it  has  ever  been  contended  that  this 
jurisdiction  could  be  maintained  is,  that  upon  the  formation  of  any 
political  body  an  implied  power  to  preserve  its  own  existence  and  pro- 
mote the  end  and  object  of  its  creation  necessarily  results  to  it.  But 
without  examining  how  far  this  consideration  is  applicable  to  the  pecu- 
liar character  of  our  Constitution,  it  may  be  remarked  that  it  is  a  prin- 
ciple by  no  means  peculiar  to  the  common  law.  It  is  coeval  probably 
with  tlie  first  formation  of  a  limited  government,  belongs  to  a  system 
of  universal  law.  and  may  as  well  support  the  assumption  of  many 
other  powers  as  those  more  peculiarly  acknowledged  by  the  common 
law  of  England. 

But  if  admitted  as  applicable  to  the  state  of  things  in  this  country, 
the  consequence  would  not  result  from  it  which  is  here  contended  for. 
If  it  may  communicate  certain  implied  powers  to  the  general  govern- 
ment, it  would  not  follow  that  the  courts  of  that  government  are  vested 
with  jurisdic'tion  over  any  particular  act  done  b}'  an  individual  in  sup- 
posed violation  of  the  peace  and  dignity  of  the  sovereign  power.     The 


CHAP.  I.]  COMMONWEALTH   V.    MARSHALL.  5 

legislative  authority  of  the  Union  must  first  make  an  act  a  crime,  affix 
a  punishment  to  it,  and  declare  the  court  that  shall  have  jurisdiction 
of  the  offence. 

Certain  implied  powers  must  necessarily  result  to  our  courts  of  jus- 
tice from  the  nature  of  their  institution  ;  but  jurisdiction  of  crimes 
against  the  State  is  not  among  those  powers.  To  fine  for  contempt, 
imprison  for  contumacy,  enforce  the  observance  of  order,  etc.,  are 
powers  which  cannot  be  dispensed  with  in  a  court,  because  they  are 
necessary  to  the  exercise  of  all  others  ;  and  so  far  our  courts  no  doubt 
possess  powers  not  immediately  derived  from  statute ;  but  all  exercise 
of  criminal  jurisdiction  in  common-law  cases  we  are  of  opinion  is  not 
within  their  implied  powers.^ 


COMMONWEALTH  v.  MARSHALL. 
Supreme  Judicial  Court  of  Massachusetts.     1831. 

[Reported  11  Pick.  350.] 

At  April  term  1831  of  this  Court,  in  the  county  of  Franklin,  the 
defendants  were  indicted  for  a  misdemeanor  in  disinterring  a  dead  body 
on  the  20th  of  February  of  the  same  year,  contra  formam  statuti.  The 
defendants  pleaded  nolo  contendere,  and  afterwards  moved  in  arrest  of 
judgment,  for  the  following  reasons  :  1.  Because  the  offence  charged  in 
the  indictment  is  therein  stated  to  have  been  committed  in  violation  of 
the  statute  passed  March  2,  1815  (St.  1814,  c.  175),  which  was  re- 
pealed by  the  statute  of  Feb.  28,  1831  (St.  1830,  c.  57),  without  any 
saving  or  excepting  clause  whatever ;  and,  2.  Because  no  offence  now 
known  by  the  laws  of  this  commonwealth,  is  therein  described. 

H.  Hubbard  and  J.  W.  Clarke,  in  support  of  the  motion,  cited 
Commonwealth  v.  Northampton,  2  Mass.  R.  116;  Commonwealth  v. 
Cooley,  10  Pick.  37  ;  Miller's  case,  1  W.  Bl.  451  ;  6  Dane's  Abr.  591, 
616  ;  United  States  v.  Passmore,  4  Dallas,  373  ;  Commonwealth  v. 
Duane,  1  Binn.  601  ;  1  Hawk.  P.  C.  c.  40,  §  6  ;  Hatfield  Township 
Road,  4  Yeates,  492  ;  1  Kent's  Com.  435  ;  Rex  v.  Morgan,  2  Str. 
1066  ;  Bac.  Abr.  Statute,  D  ;  Commonwealth  v.  Macomber,  3  Mass. 
R.  254. 

Davis  (Solicitor-General)  and  B.  E.  Neiocomh,  for  the  common- 
wealth, cited  3  Stark,  Ev.  1129;  Bac.  Abr.  Statute,  2>,  cites  Jenk. 
233,  pi.  6  ;  Melody  v.  Reab,  4  Mass.  R.  471 ;  Gibson  v.  Jenney,  15 
Mass.  R.  205  ;  7  Mass.  R.  524. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  Court.  This  indictment 
cannot  be  maintained,  consistently  with  the  decision  of  the  Court  last 

1  Estes  V,  Carter,  10  Iowa,  400  ;  Mitchell  v.  State,  42  Ohio  St.  383.  —  Ed. 


6  COMMONWEALTH   V.    CHURCHILL.  [CKA.P.  L 

vear  in  the  case  in  this  county,  of  Commonwealth  v.  Cooley,  10  Pick. 
37.  In  that  case  it  was  held,  that  the  statute  of  1814,  containing  a 
series  of  provisions  in  relation  to  the  whole  subject-matter  of  the  dis- 
interment of  dead  bodies,  had  superseded  and  by  necessary  implica- 
tion repealed  the  provisions  of  the  common  law  on  the  same  subject. 
If  it  be  true,  as  contended,  that  as  a  general  rule  the  repeal  of  a  re- 
pealing law,  revives  the  pre-existing  law,  it  would  be  difficult  to  main- 
tain that  such  a  clause  of  repeal,  in  a  statute  containing  a  series  of 
i)rovisions,  revising  the  whole  subject,  and  superseding  the  existing 
statute,  would  revive  the  pre-existing  provisions  of  the  common  law. 
But  were  that  point  conceded,  as  contended  for,  it  would  not  aid  this 
indictment. 

In  the  case  supposed,  the  common  law  would  not  be  in  force  during 
the  existence  of  the  statute,  and  if  revived  by  its  repeal,  such  revival 
would  take  effect  only  from  the  time  of  such  repeal. 

It  is  clear,  that  there  can  be  no  legal  conviction  for  an  offence,  unless 
the  act  be  contrary  to  law  at  the  time  it  is  committed ;  nor  can  there 
be  a  judgment,  unless  the  law  is  in  force  at  the  time  of  the  indictment 
and  judgment.  If  the  law  ceases  to  operate,  by  its  own  limitation  or  by 
a  repeal,  at  any  time  before  judgment,  no  judgment  can  be  given. 
Hence,  it  is  usual  in  every  repealing  law  to  make  it  operate  prospec- 
tively only,  and  to  insert  a  saving  clause,  preventing  the  operation  of 
the  reiieal,  and  continuing  the  repealed  law  in  force,  as  to  all  pending 
prosecutions,  and  often  as  to  all  violations  of  the  existing  law  already 
committed. 

These  principles  settle  the  present  case.  By  the  statute  1830,  c.  57, 
§  6,  that  of  1814  was  repealed  without  any  saving  clause.  The  act 
charged  upon  the  defendants  as  an  offence  was  done  after  the  passing 
of  the  statute  of  1814,  and  before  that  of  1830.  The  act  cannot  be 
punished  as  an  offence  at  common  law,  for  that  was  not  in  force  during 
the  existence  of  the  statute  ;  nor  by  the  statute  of  1814,  because  it  has 
been  repealed  without  any  saving  clause ;  nor  by  the  statute  of  1830, 
for  the  act  was  done  before  that  statute  was  passed.  No  judgment 
therefore  can  be  rendered  against  the  defendants,  on  this  indictment. 

Judgment  arrested. 


COMMONWEALTH  v.   CHURCHILL. 
Supreme  Judicial  Court  of  Massachusetts.    1840. 

[Reported  2  Met.  118.] 

At  the  last  September  term  of  the  Court  of  Common  Pleas,  the  de- 
fendant was  convicted  on  four  counts  in  an  indictment,  the  first  of 
which  alleged  that  he,  "  at  Stoughton  in  said  County  of  Norfolk,  on  the 


CHAP.  I.]  COMMONWEALTH   V.   CHURCHILL.  7, 

1 6th  day  of  March  last  past,  did  sell  to  one one  glass  of  brandy 

to  be  by  him,  the  said ,  then  and  there  used,  consumed,  and  drank 

in  the  dwelUng-house  there  situate  of  him  the  said  Samuel,  he  the  said 
Samuel  not  being  then  and  there  duly  licensed,  according  to  law,  to  be 
an  innholder  or  common  victualler;  against  the  peace,  etc.,  and  con- 
trary to  the  statute  in  such  case  made  and  provided."  There  were  five 
other  counts  similar  to  the  first,  except  that  different  kinds  of  spirituous 
liquor  were  alleged  to  have  been  sold  to  five  ditferent  persons  on  sev- 
eral different  days,  to  wit,  on  the  17th,  18th,  19th,  20th,  and  21st  of 
March,  1840.     On  two  of  the  counts  the  defendant  was  acquitted. 

The  defendant  filed  exceptions  to  the  ruUng  of  Strong,  J.,  before 
whom  the  trial  was  had:  "  1.  Because  the  court  instructed  the  jury 
that  the  2d  and  3d  sections  of  c.  47  of  the  Revised  Statutes,  on  which 
the  indictment  is  founded,  are  binding  and  valid,  when  the  defendant 
contends  that  they  are  unconstitutional  and  void.  2.  Because  the 
court  instructed  the  jury  that  those  sections  were  still  in  force  as  law, 
when  the  defendant  contends  that  they  are  repealed  by  subsequent 
legislative  enactments."  ^ 

Shaw,  C.  J.  It  appears  by  the  record  that  the  defendant  was  in- 
dicted for  selling  spirituous  liquors  without  license,  on  the  16th  day  of 
March  last,  and  at  several  times  afterwards,  and  that  upon  a  trial  of 
the  indictment,  in  the  Court  of  Common  Pleas,  he  was  convicted.  Two 
exceptions  were  taken  to  the  directions  and  opinion  of  that  court  in 
matter  of  law,  upon  which  the  case  has  been  brought  before  this  court, 
pursuant  to  the  statute.  These  exceptions  were  as  follows:  1.  That 
the  2d  and  3d  sections  of  the  47th  chapter  of  the  Revised  Statutes, 
upon  which  this  prosecution  is  founded,  are  unconstitutional  and  void. 
2.  Because  the  court  instructed  the  jury  that  these  sections  were  in 
force  as  law,  at  the  time  when  the  acts  charged  as  offences  were  alleged 
to  be  done  ;  whereas  the  defendant  contended  that  they  were  repealed 
by  a  subsequent  act  of  the  legislature.  Upon  the  first  no  argument  has 
been  offered,  and  it  does  not  seem  to  be  insisted  on.  The  second  de- 
pends upon  the  question  whether  the  statute  of  1840,  c.  1.  passed  on 
the  11th  of  February,  1840,  and  which  went  into  operation  in  thirty 
days  from  its  passage,  to  wit,  13th  March,  1840,  simply  repealing  the 
statute  of  1838,  c.  157,  did,  by  its  legal  operation,  revive  the  2d  and 
3d  sections  of  the  47th  chapter  of  the  Revised  Statutes.  If  it  did,  the 
case  of  the  defendant  was  within  thera,  the  acts  all  being  charged  to 
have  been  done  after  the  13th  of  March  last,  and  the  acts  themselves 
being  made  punishable  by  those  provisions  of  the  Revised  Statutes. 

It  is  conceded  to  be  a  maxim  of  the  common  law,  applicable  to  the 
construction  of  statutes,  that  the  simple  repeal  of  a  repealing  law,  not 
substituting  other  provisions  in  place  of  those  repealed,  revives  the 
pre-existing  law.  As  a  maxim  of  the  common  law,  it  was  in  force  here 
when  the  Constitution  of  the  Commonwealth  was  adopted.     By  that 

1  The  arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


8  COMMONWEALTH  V.    CHURCHILL.  [CHAP.  L 

Constitution  it  was  declared  that  "  all  the  laws,  which  have  heretofore 
been  adopted,  used,  and  approved  in  the  colony,  province,  or  State  of 
Massachusetts  Bay,  and  usually  practised  on  in  the  courts  of  law,  shall 
still  remain  and  be  in  full  force,  until  altered  or  repealed  by  the  legis- 
lature ;  such  parts  only  excepted  as  are  repugnant  to  the  rights  and 
liberties  contained  in  this  Constitution."  This  Constitution  has  been 
construed  as  adopting  the  great  body  of  the  common  law,  with  those 
statutes  made  before  the  emigration  of  our  ancestors,  which  were  made 
in  amendment  of  the  common  law,  so  far  as  these  rules  and  principles 
were  appUcable  to  our  condition  and  form  of  government.  Common- 
wealth y.  Leach,  1  Mass.  59.  Commonwealth  v.  Knowlton,  2  Mass, 
534. 

But  it  was  contended,  at  the  argument,  that  under  this  provision  no 
principle  or  rule  of  the  common  law  could  be  regarded  as  adopted,  un- 
less it  could  be  shown  affirmatively  that  it  had  been  adjudicated  before 
the  Revolution.  But  we  apprehend  this  would  be  much  too  narrow  a 
construction.  Before  the  Revolution,  we  had  no  regular  reports  of 
judicial  decisions  ;  and  the  most  familiar  rules  and  principles  of  law  — 
those  which  lie  at  the  foundation  of  our  civil  and  social  rights  —  could 
not  be  so  proved.  No ;  we  rely  on  usage  and  tradition,  and  the  well 
known  repositories  of  legal  learning,  works  of  approved  authority,  to 
learn  what  are  the  rules  of  the  common  law ;  and  we  have  no  doubt 
that  these  were  the  great  sources  to  which  the  above  pregnant  provision 
of  our  Constitution  refers. 

Taking  it,  then,  as  well  established  that  the  rules  and  maxims  of  the 
common  law  referred  to  in  the  Constitution  were  those  which  our  an- 
cestors brought  with  them,  and  which  had  been,  to  some  extent,  modi- 
fied and  adapted  to  our  condition  by  the  legislative  jurisprudence  of  the 
colonial  and  provincial  governments,  it  follows  that  these  rules  and 
principles  were  regarded  as  binding  both  upon  legislators  and  judges 
in  their  respective  departments.  A  part  of  this  sj'stem  are  the  well 
known  rules  of  construction  for  the  expounding  of  statutes,  which  are 
as  much  a  part  of  every  statute  as  its  text.  These  are  presumed  to  be 
known  and  kept  in  view  by  the  legislature  in  framing  the  statute ;  and 
they  must  be  alike  regarded  by  judges  in  expounding  it. 

It  was  further  insisted  in  the  argument  that  the  legislature  could 
not  have  intended,  when  they  rei>ealed  one  license  law,  in  effect  to  re- 
establish another.  But  their  intentions  must  be  ascertained  by  their 
acts  alone,  and  not  by  evidence  aliunde.  We  cannot  possibly  know 
the  intentions  of  members  of  the  legislature.  It  is  the  will  of  the  aggre- 
gate body  as  expressed  in  the  statutes  which  they  pass,  which  can  be 
regarded  as  having  the  force  of  law ;  any  different  construction  would 
lead  to  the  greatest  confusion  and  uncertainty.  The  legislature  are 
presumed  to  understand  and  intend  all  consequences  of  their  own 
measures ;  and  the  only  safe  course  is  for  courts  of  justice  to  expound 
the  intentions  of  the  legislature  by  their  acts,  and  those  acts  construed 
by  known  and  established  rules  of  construction. 


CHAP.  I.]  COMMONWEALTH   V.   CHURCHILL.  9 

On  the  whole,  the  Court  are  of  opinion  that  the  simple  repeal  of  St. 
1838,  c.  157,  by  that  of  1840,  c.  1,  did  revive  the  2d  and  3d  sections  of 
the  Rev.  Stats,  c.  47,  and  that  the  provisions  of  those  sections  were  in 
force  at  the  time  of  the  offences  charged  in  the  indictment,  and  that 
the  conviction  was  right. 

Exceptions  overruled. 


iO  REX   V.   O'DONXELL.  [CHAP.  IL 


CHAPTER  IL 

CRIMINAL  PROCEDURE. 

4  Bl.  Com.  289.  We  are  now  to  consider  the  regular  and  ordi- 
nary method  of  proceeding  in  the  courts  of  criminal  jurisdiction ; 
which  may  be  distributed  under  twelve  general  heads,  following  each 
other  iu  a  progressive  order,  namely:  1,  Arrest;  2,  Commitment  and 
Bail ;  3,  Prosecution ;  4,  Process ;  5,  Arraignment  and  its  incidents ; 
6,  Plea  and  Issues;  7,  Trial  and  Conviction;  8,  Clergy;  9,  Judgment 
and  its  consequences;  10,  Reversal  of  Judgment;  11,  Reprieve  or 
Pardon;  12,  E^xecution. 

2  Hawkins,  Pleas  of  the  Crown,  ch.  15.^  "Wherever  a  person  is 
brought  before  a  justice  of  peace  upon  an  accusation  of  treason  or 
felony,  he  must  be  either  bailed  or  committed,  unless  it  manifestly 
ai)pear  that  no  such  crime  was  committed,  or  that  the  cause  for  wliicli 
alone  the  party  was  suspected  was  totally  groundless,  in  which  cases 
only  it  is  lawful  to  discharge  him  without  bail.  (Ibid.  ch.  16,  Sect.  1.) 
Persons  apprehended  for  offences  which  are  not  bailable,  and  also  all 
persons  who  neglect  to  offer  bail  for  offences  which  are  bailable,  must 
be  committed. 


REX  V.  O'DONNELL. 

Central  Criminal  Court.     1835. 

[Rei>orted  7  C.  ^  P.  138.] 

The  prisoner  was  indicted  for  stealing  fifty-four  silver  spoons,  and 
various  other  articles,  the  goods  of  M.  A.  Moore,  his  mistress,  in  her 
dwelling-house. 

The  prisoner  was  not  defended  by  counsel,  and  he  complained  that 
he  was  prevented  from  employing  any  b}'  the  act  of  the  ofHcer  who 
searched  him,  in  taking  away  all  the  money  that  he  had  about  him. 

Pattkson,  J.,  in  the  course  of  his  summing  up,  said:  The  pris- 
oner complains  that  his  mone}'  was  taken  from  him,  and  that  he  was 
thereby  deprived  of  the  means  of  making  his  defence.  Generally 
speaking,  it  is  not  right  that  a  man's  money  should  be  taken  away 
from  him,  unless  it  is  connected  in  some  way  with  the  property  stolen. 

1  The  rc'ftrences  to  Hawkins  are  to  the  8th  ed.  by  Garwood,  London,  1824. 


CHAP.  II.]  INDICTMENT.  11 

If  it  is  connected  with  the  robber}',  it  is  quite  proper  that  it  should  be 
taken.  But  unless  it  is,  it  is  not  a  fair  thing  to  take  away  his  mono}-, 
which  he  might  use  for  his  defence.  I  believe  constal)les  are  too  uuich 
in  the  habit  of  taking  away  every  thing  they  find  upon  a  prisoner, 
which  is  certainly  not  right.  And  this  is  a  rule  which  ought  to  be 
observed  by  all  policemen  and  other  peace  oflicers. 

2  Ilawkius,  Pleas  of  the  Crown,  ch.  25.  An  indictment  is  an  accu- 
sation, at  the  suit  of  the  king,  by  the  oaths  of  twelve  men  of  the 
same  county  wherein  the  offence  was  committed,  returned  to  inquire 
of  all  offences  in  general  in  the  county  determinable  by  the  court  into 
which  they  are  returned,  and  finding  a  bill  brought  before  them  to 
be  true. 

But  when  such  accusation  is  found  by  a  grand  jury,  without  any  bill 
brought  before  them,  and  afterwards  reduced  to  a  formed  indictment, 
it  is  called  a  presentment. 

And  when  it  is  found  by  jurors  returned  to  inquire  of  that  particular 
offence  only  which  is  indicted,  it  is  properly  called  an  inquisition. 

(Ibid.  Sect.  16.)  It  seems  clear  that  by  the  common  law  every 
indictment  must  be  found  by  twelve  men  at  the  least,  every  one  of 
whom  ought  to  be  of  the  same  county,  and  returned  by  the  sheriff,  or 
other  proper  officer,  without  the  nomination  of  any  other  person  what- 
soever; and  ought  also  to  be  a  freeman,  and  a  lawful  liege  subject; 
and  consequently  neither  under  an  attainder  of  an}'  treason  or  felony, 
nor  a  villein,  nor  alien,  nor  outlawed,  whether  for  a  criminal  matter 
or,  as  some  say,  in  a  personal  action.  And  from  hence  it  seems  clear 
that  if  it  appear  by  the  caption  of  an  indictment,  or  otherwise,  that  it 
was  found  b}'  less  than  twelve,  the  proceedings  upon  it  will  be 
erroneous. 

4  Bl.  Cora.  303.  This  grand  jury  are  previously  instructed  in  the 
articles  of  their  inquiry,  by  a  charge  from  the  judge  who  presides 
upon  the  bench.  They  then  withdraw,  to  sit  and  receive  indictments, 
which  are  preferred  to  them  in  the  name  of  the  king,  but  at  the  suit  of 
any  private  prosecutor ;  and  they  are  only  to  hear  evidence  on  behalf 
of  the  prosecution :  for  the  finding  of  an  indictment  is  only  in  the 
nature  of  an  inquiry  or  accusation,  which  is  afterwards  to  be  tried  and 
determined  ;  and  the  grand  jury  are  only  to  inquire,  upon  their  oaths, 
whether  there  be  sufficient  cause  to  call  upon  the  party  to  answer  it. 
A  grand  jury,  however,  ought  to  be  thoroughly  persuaded  of  the  truth 
of  an  indictment,  so  far  as  their  evidence  goes  ;  and  not  to  rest  satisfied 
merely  with  remote  probabilities  ;  a  doctrine  that  might  be  applied  to 
very  oppressive  purposes.  .  .  .  When  the  grand  jury  have  heard  the 
evidence,  if  they  think  it  a  groundless  accusation,  they  used  formerly 
to  indorse  on  the  back  of  the  bill,  "  ignoramus  ;  "  or,  we  know  noth- 
ing of  it :  intimating  that,  though  the  facts  might  possibly  be  true,  that 
truth  did  not  appear  to  them  :  but  now,  they  assert  in  English  more 
absolutely,   "not   a  true  bill;"  or  (which  is  the  better  way),  "not 


12 


AKRAIGXMENT.  [OHA.P.  IL 


fuiind  ;  "  and  then  the  party  is  discharged  without  further  answer. 
But  a  fresh  bill  may  afterwards  be  preferred  to  a  subsequent  grand 
jury.  If  they  are  satisfied  of  the  truth  of  the  accusation,  they  then  in- 
dorse upon  it,  "  a  true  bill ;  "  anciently,  '^  billa  vera:'  The  indictment 
is  then  said  to  be  found,  and  the  party  stands  indicted.  But  to  find  a 
bill  there  must  at  least  twelve  of  the  jury  agree ;  for  so  tender  is  the 
law  of  England  of  the  lives  of  the  subjects  that  no  man  can  be  con- 
victed at  the  suit  of  the  king  of  any  capital  oflTence,  unless  by  the  unani- 
mous voice  of  twenty-four  of  his  equals  and  neighbors ;  that  is,  by 
twelve  at  least  of  the  grand  jury,  in  the  first  place,  assenting  to  the 
accusation ;  and  afterwards,  by  the  whole  petit  jury,  of  twelve  more, 
finding  him  guilty,  upon  his  trial.  But  if  twelve  of  the  grand  jury 
assent,  it  is  a  good  presentment,  though  some  of  the  rest  disagree. 
And  the  indictment,  when  so  found,  is  publicly  delivered  into  court. 

2  Hawk.  P.  C.  ch.  28,  Sect.  1.  Every  person  at  the  time  of  his 
arraignment,  ought  to  be  used  with  all  the  humanity  and  gentleness 
which  is  consistent  with  the  nature  of  the  thing,  and  under  no  other 
terror  or  uneasiness  than  what  proceeds  from  a  sense  of  his  guilt,  and 
the  misfortune  of  his  present  circumstances ;  and  therefore  ought  not 
to  be  brought  to  the  bar  in  a  contumelious  manner,  —  as  with  his  hands 
tied  together,  or  any  other  mark  of  ignominy  and  reproach  ;  nor  even 
with  fetters  on  his  feet,  unless  there  be  some  danger  of  a  rescous  or 
escape.  It  seems  indeed  to  have  been  holden  by  some  that  this  is  a 
particular  privilege  of  persons  in  holy  orders  ;  but  it  seems  the  better 
opinion  that  the  law  makes  no  distinction  in  this  respect  between 
them  and  laymen. 

4  Bl.  Com.  324.  When  a  criminal  is  arraigned,  he  either  stands 
mute  or  confesses  the  fact ;  which  circumstances  we  may  call  incidents 
to  the  arraignment :  or  else  he  pleads  to  the  indictment,  which  is  to  be 
considered  as  the  next  stage  of  proceedings.  But,  first,  let  us  observe 
these  incidents  to  the  arraignment,  of  standing  mute,  or  confession. 
Regularly,  a  prisoner  is  said  to  stand  mute,  when,  being  arraigned 
for  treason  or  felony,  he  either,  (1)  Makes  no  answer  at  all ;  or, 
(2)  Answers  foreign  to  the  purpose,  or  with  such  matter  as  is  not 
allowal)le,  and  will  not  answer  otherwise  ;  or,  (3)  Upon  having  pleaded 
not  guilt}-,  refuses  to  put  himself  upon  the  countr}'.  If  he  says  noth- 
ing, the  court  ought  ex  officio  to  empanel  a  jur\'  to  inquire  whether  he 
stands  obstinately  mute,  or  whether  he  be  dumb  ex  visitatione  Dei} 

If  the  latter  appears  to  be  the  case,  the  judges  of  the  court  (who 
are  to  be  of  counsel  for  the  prisoner,  and  to  see  that  he  hath  law  and 
justice)  shall  proceed  to  the  trial,  and  examine  all  points  as  if  he  had 
pleaded  not  guilty.  But  whether  judgment  of  death  can  be  given 
against  such  a  prisoner  who  hath  never  pleaded,  and  can  say  nothing 
in  arrest  of  judgment,  is  a  point  as  yet  undetermined. 

If  he  be  found  to  be  obstinately  mute  (which  a  prisoner  hath  been  held 

1  SUte  V.  Doherty,  2  Overton,  80.  —  Ed. 


OHAP.  II.J  STANDING   MUTE.  13 

to  be  that  hath  cut  out  his  own  tongue),  then,  if  it  be  on  an  indictment  of 
liigii  treason,  it  hath  long  boon  clearly  settled,  that  standing  mute  is  an 
equivalent  to  a  conviction,  and  he  shall  receive  the  same  judgment  and 
execution.  And  as  in  this  the  highest  crime,  so  also  in  the  lowest 
species  of  felony,  viz. :  in  petit  larceny,  and  in  all  misdemeanors, 
standing  mute  hath  alwaj's  been  equivalent  to  conviction.  But  upon 
appeals  or  indictments  for  other  felonies,  or  petit  treason,  the  prisoner 
was  not,  by  the  ancient  law,  looked  upon  as  convicted,  so  as  to  receive 
judgment  for  the  felony  ;  but  should,  for  his  obstinacy,  have  received 
the  terrible  sentence  of  penance,  or  peine  (which,  as  will  appear  pres- 
ently, was  probably  nothing  more  than  a  corrupted  abbreviation  of 
priso7ie)  forte  et  dure. 

Before  this  was  pronounced  the  prisoner  had  not  only  trina  admoni- 
tion but  also  a  respite  of  a  few  hours,  and  the  sentence  was  distinctly 
read  to  him,  that  he  might  know  his  danger ;  and,  after  all,  if  he 
continued  obstinate,  and  his  offence  was  clergyable,  he  had  the  benefit 
of  his  clergy  allowed  him,  even  though  he  was  too  stubborn  to  pray  it. 
Thus  tender  was  the  law  of  inflicting  this  dreadful  punishment ;  but  if 
710  other  means  could  prevail,  and  the  prisoner  (when  charged  with  a 
capital  felony)  contiimed  stubbornly  mute,  the  judgment  was  then  given 
against  him  without  any  distinction  of  sex  or  degree.  A  judgment 
which  was  purposely  ordained  to  be  exquisitely  severe,  that  by  that 
very  means  it  might  rarely  be  put  in   execution.  .  .  . 

The  English  judgment  of  penance  for  standing  mute  was  as  follows  : 
that  the  prisoner  be  remanded  to  the  prison  from  whence  he  came  ;  and 
put  into  a  low,  dark  chamber ;  and  there  be  laid  on  his  back,  on  the 
bare  floor,  naked,  unless  where  decency  forbids :  that  there  be  placed 
upon  his  body  as  great  a  weight  of  iron  as  he  could  bear,  and  more ; 
that  he  have  no  sustenance,  save  only,  on  the  first  day,  three  morsels 
of  the  worst  bread ;  and  on  the  second  day,  three  draughts  of  standing 
water,  that  should  be  nearest  to  the  prison  door ;  and  in  this  situation 
this  should  be  alternately  his  daily  diet  till  he  died,  or  (as  anciently  the 
judgment  ran)  till  he  ansioered."^  .  .  .  The  other  incident  to  arraign- 
ments, exclusive  of  the  plea,  is  the  prisoner's  actual  confession  of  the 
indictment.  Upon  a  simple  and  plain  confession,  the  court  hath  noth- 
ing to  do  but  to  award  judgment :  but  it  is  usually  very  backward  in 
receiving  and  recording  such  confession,  out  of  tenderness  to  the  life  of  ' 
the  subject ;  and  will  generally  advise  the  prisoner  to  retract  it,  and 
plead  to  the  indictment. 

2  See  Stats.  12  Geo.  III.,  ch.  20 ;  7  &  8  Geo.  IV.,  ch.  28,  §  2. 

"If  the  defendant  refuse  to  answer  an  indictment  by  demurrer  or  plea,  a  plea  of 
not  guilty  mn.«t  be  entered."     N.  Y.  Code  Crim.  Proc.  §  342. 

"  If  on  arraignment  a  person  refuses  to  plead  or  answer,  or  does  not  confess  the  in- 
dictment to  be  true,  tlie  court  shall  order  a  plea  of  not  guilty  to  be  entered,  and  there- 
upon the  proceedings  shall  be  the  same  as  if  he  had  pleaded  not  guilty.  It  shall  not 
be  necessary  in  any  case  to  ask  a  prisoner  how  he  will  he  tried."  Mass.  Pub.  Stat 
ch.  213,  sect.  37.     U.  S.  Rev.  Stat.  §  1032,  to  the  same  effect. 


24  SCHWAB  V.   BERGGREN.  [CHAP.  II. 

2  Hawk.  P.  C.  ch.  33,  Sect.  1.  It  may  not  be  improper  to  look  a 
lillle  back  into  the  original  of  clergy,  whereby  we  shall  find  that  an- 
ciently the  clergy  strongly  insisted  that  by  the  law  of  God  their  persons 
were  so  sacred  that  they  could  not,  without  a  violation  of  that  law,  be 
convened  before,  and  much  less  be  punished  with  the  loss  of  life  or 
member  by,  any  secular  judge,  for  any  crime  whatsoever.  But  there 
seems  to  be  so  little  color  for  any  pretence  of  this  kind  from  Scripture, 
that  I  almost  wonder  how  it  was  possible  that  any  persons  could  be  so 
far  prejudiced  as  seriously  to  be  persuaded  that  it  is  deducible  from 
thence. 

4  Bl.  Com.  3G6.  Originally  the  law  was  held  that  no  man  should  be 
admitted  to  the  privilege  of  clergy  but  such  as  had  the  habitum  et  ton- 
suram  dericalem.  But  in  process  of  time  a  much  wider  and  more  com- 
prehensive criterion  was  established  :  every  one  that  could  read  (a  mark 
of  great  learning  in  those  days  of  ignorance  and  her  sister,  superstition) 
being  accounted  a  clerk  or  clericus,  and  allowed  the  benefit  of  clerk- 
ship, though  neither  initiated  in  holy  oi'ders,  nor  trimmed  with  the 
clerical  tonsure.  But  when  learning,  hy  means  of  the  invention  of 
printing,  and  other  concurrent  causes,  began  to  be  more  generallj'  dis- 
seminated than  formerly ;  and  reading  was  no  longer  a  competent 
proof  of  clerkship,  or  being  in  holy  orders  ;  it  was  found  that  as  many 
laymen  as  divines  were  admitted  to  the  privilegium  clericale :  and 
therefore  by  statute  4  Hen.  VII.  c.  13,  a  distinction  was  once  more 
drawn  between  mere  la}'  scholars,  and  clerks  that  were  really  in  orders. 
And,  though  it  was  thought  reasonable  still  to  mitigate  the  severity  of 
the  law  with  regard  to  the  former,  j-et  the}'^  were  not  put  upon  the 
same  footing  with  actual  clergy  ;  being  subjected  to  a  slight  degree  of 
punishment,  and  not  allowed  to  claim  the  clerical  privilege  more  than 
once.  Accordingly  the  statute  directs  that  no  person  once  admitted  to 
the  benefit  of  clergy  shall  be  admitted  thereto  a  second  time,  unless 
he  produces  his  orders :  and  in  order  to  distinguish  their  persons,  all 
laymen  who  are  allowed  this  privilege  shall  be  burnt  with  a  hot  iron  in 
the  brawn  of  the  left  thumb. 

4  Bl.  Com.  375.  "When,  upon  a  capital  charge,  the  jury  have  brought 
in  their  verdict  guilty,  in  the  presence  of  the  prisoner,  he  is  either 
immediately,  or  at  a  convenient  time  soon  after,  asked  by  the  court 
if  he  has  anything  to  oflTer  why  judgment  should  not  be  awarded  against 
him. 

Harlan,  J.,  in  Schwab  v.  Berggren,  143  U.  S.  442,  446,  448.  At 
common  law  it  was  deemed  essential  in  capital  cases  that  inquiry  bo 
made  of  the  defendant,  before  judgment  was  passed,  whether  he  had 
anything  to  say  why  the  sentence  of  death  should  not  be  pronounced 
upon  him ;  thus  giving  him  an  opportunity  to  allege  any  ground  of  ar- 
rest, or  to  plead  a  pardon,  if  he  had  obtained  one,  or  to  urge  any  other 
legal  objection  to  further  proceedings  against  him.     This  privilege  was 


CHAP.  II.  J  SCHWAB   V.    BERGGREN.  15 

deemed  of  such  substantial  value  to  the  accused  that  tlie  judgment 
would  be  reversed  if  the  record  did  not  show  that  it  was  accorded  to 
him.  Ball  v.  United  States,  140  U.  S.  118, 121),  11  Sup.  Ct.  Rep.  7G1 ;  1 
Chit.  Crim.  Law,  699,  700  ;  Rex  v.  Geary,  2  Salk.  630  ;  King  v.  Speke, 
3  Salk.  358  ;  Anon.,  3  Mod.  266  ;  1  Archb.  Crim.  Pr.  &  PI.  (Pom.  Ed.) 
577,  578.  And  it  has  been  so  ruled  in  the  courts  of  some  of  the  States. 
Hamilton  v.  Com.  16  Pa.  St.  129,  133;  Messner  v.  People,  45  N.  Y. 
1,5;  James  v.  State,  45  Miss.  572,  579;  Crim  v.  State,  43  Ala.  53, 
."»G  ;  Perry  v.  State,  Id.  21  ;  State  v.  Jennings,  24  Kas.  642,  659  ; 
Keech  v.  State,  15  Fla.  591,  609 ;  Grady  v.  State,  11  Ga.  253,  257  ; 
Safford  v.  People,  1  Parker  Crim.  R.  474,  476. 

Numerous  authorities  have  been  cited  for  the  appellant  in  support  of 
the  general  common  law  rule  that  the  accused  must  be  present  when  the 
judgment  against  him  is  pronounced ;  but  they  fall  far  short  of  estab- 
lishing the  contention  that  due  process  of  law  required  his  personal 
presence  in  the  Supreme  Court  of  Illinois  at  the  time  the  order  was 
entered  affirming  the  judgment  by  which  he  was  sentenced  to  death. 
No  case  is  cited,  and  we  are  aware  of  no  well-considered  case,  which 
supports  that  contention.  The  personal  presence  of  the  accused  from 
the  beginning  to  the  end  of  a  trial  for  felony,  involving  life  or  liberty, 
as  well  as  at  the  time  final  judgment  is  rendered  against  him,  may  be, 
and  must  be  assumed  to  be,  vital  to  the  proper  conduct  of  his  defence, 
and  cannot  be  dispensed  with.  This  Court  in  Hopt  v.  Utah,  110  U.  S. 
574,  579,  4  Sup.  Ct.  Rep.  202,  after  observing  that  the  public  has  an 
interest  in  the  life  and  liberty  of  the  accused,  and  that  neither  can  be 
lawfully  taken  except  in  the  mode  prescribed  by  law,  said  :  "  That  which 
the  law  makes  essential  in  proceedings  involving  deprivation  of  life  or 
liberty  cannot  be  dispensed  with  or  affected  by  the  consent  of  the  ac- 
cused, much  less  by  his  mere  failure,  when  on  trial  and  in  custody,  to 
object  to  unauthorized  methods.  The  great  end  of  punishment  is  not 
the  expiation  or  atonement  of  the  offence  committed,  but  the  prevention 
of  future  offences  of  the  same  kind.  4  Bl.  Com.  11.  Such  being  the 
relation  which  the  citizen  holds  to  the  public,  and  the  object  of  punish- 
ment for  public  wrongs,  the  legislature  has  deemed  it  essential  to  the 
protection  of  one  whose  life  or  liberty  is  involved  in  a  prosecution  for 
felony  that  he  shall  be  personally  present  at  the  trial ;  that  is,  at  every 
stage  of  the  trial  when  his  substantial  rights  may  be  affected  by  the 
proceedings  against  him.  If  he  be  deprived  of  his  life  or  liberty  with- 
out being  so  present,  such  deprivation  would  be  without  that  due  pro- 
cess of  law  required  by  the  constitution."  See  Harris  v.  People,  130 
111.  457,  459,  22  N.  E.  Rep.  826.  But  neither  reason  nor  public  policy 
require  that  he  shall  be  personally  present  pending  proceedings  in  an 
appellate  court  whose  only  function  is  to  determine  whether,  in  the 
transcript  submitted  to  them,  there  appear  any  error  of  law  to  the  pre- 
judice of  the  accused ;  especially  where,  as  in  this  case,  he  had  counsel 
to  represent  him  in  the  court  of  review.  We  do  not  mean  to  say  that 
the  appellate  court  may  not,  under  some  circumstances,  require  his 


16 


REX   V.   HUGH.  [chap.  IT. 


personal  presence,  but  only  that  his  presence  is  not  essential  to  its 
jurisdiction  to  proceed  with  the  case. 

[Note.  —  The  following  case,  reported  in  Y.  B.  30  &  31  Ed.  1,  529,  is  inserted  as  a 
curioim  illustration  of  ancient  forms  of  procedure.] 

H.  wai  presented  by  the  twelve  of  Y.,  for  that  he  seized  a  certain  girl,  and  carried 
her  to  his  manor  in  a  certain  vill,  and  carnally  knew  her  against  her  will. 

H.  was  brought  to  the  bar  by  Brian  and  Nicholas  de  N. 

The  JrsTiciAK.  Brian,  we  "are  given  to  understand  that  you  would  have  induced 
the  prisoner  not  to  put  himself  upon  the  jury  which  accused  him,  and  you  have  done 
ill,  but  because  he  is  your  relative,  we  are  willing  that  you  should  stand  by  him,  but 
not  that  vou  should  act  as  his  counsel. 

Brian.  My  lord,  he  is  my  relative,  but  I  wish  to  disprove  this,  &c.,  and  I  desire 
that  it  shouhl'be  well  with  him;  but  he  will  be  well  advised  by  me  to  refuse  his  com- 
mon law.    And  lest  I  should  be  at  all  suspected  of  strife,  I  will  withdraw. 

The  Jcsticiar.  Hugh,  the  presentment  is  made  to  us  that  you  carried  off,  &c., 
as  is  set  forth  ;  how  will  you  acquit  yourself  i 

Uu>/h.  My  lord,  I  pray  that  I  may  have  counsel,  lest  I  be  undone  in  the  King's 
court  for  lack  of  counsel. 

The  Jcsticiar.  You  must  know  that  the  king  is  a  party  in  this  case,  and  prose- 
cutes ex  officio ;  therefore  the  law  in  this  case  does  not  suffer  you  to  have  counsel 
against  the  king,  who  prosecutes  ex  officio ;  but  if  the  woman  should  proceed  against 
you,  you  might  have  counsel  against  her,  but  not  against  the  king.  And  therefore  we 
"order  on  the  king's  behalf  that  all  pleaders  of  your  counsel  withdraw.  (These  were 
removed).  Hugh,  answer.  You  see  the  thing  charged  against  you  is  a  very  possible 
thing,  and  a  thing  of  your  own  doing ;  so  you  can  well  enough,  without  any  counsel, 
answer  whether  you  did  it  or  not.  Moreover,  the  law  ought  to  be  general,  and  appli- 
cable to  all  persons  ;  and  the  law  is  that  the  king  is  a  party  ex  officio,  against  whom 
one  shall  not  have  counsel ;  and  if,  in  contradiction  to  law,  we  should  allow  you  coun- 
sel, and  the  Jury  should  give  a  verdict  in  your  favor  (as,  please  God,  they  will  do), 
people  would  say  that  you  were  acquitted  by  reason  of  the  favor  of  the  Justiciars; 
consequently  we  do  not  dare  grant  your  request,  nor  ought  you  to  make  it.  Therefore, 
answer. 

Hugh.  My  lord,  I  am  a  clerk,  and  ought  not  to  be  required  to  answer  except  unto 
my  ordinary. 

The  Justiciar.    Are  you  a  clerk  ? 

Hugh.     Yes,  my  lord,  for  I  have  been  rector  of  the  church  of  N. 

Ordinary.     We  demand  him  as  a  clerk. 

Hugh.     He  speaks  for  me. 

The  JrsTiciAR.  We  say  that  you  have  forfeited  your  benefit  of  clergy,  inasmuch 
as  you  are  a  bigamist,  having  married  a  widow ;  tell  us  whether  she  was  a  virgin  when 
you  married  her  ;  and  it  is  as  well  to  know  the  truth  at  once  as  to  delay,  for  we  can 
find  out  in  a  moment  from  a  jury. 

Hugh.    My  lord,  she  was  a  virgin  when  I  married  her. 

The  Justiciar.  This  should  be  known  at  once.  And  he  asked  the  twelve 
whether  Hugh,  &e.,  who  said  on  their  oath  that  she  was  a  widow  when  Lord  Hugh 
married  her.  But  note  that  they  were  not  sworn  anew,  because  they  had  been  sworn 
before. 

The  Justiciar.  Therefore  this  court  adjudges  that  you  answer  as  a  layman,  and 
agree  to  those  good  men  of  the  twelve ;  for  we  know  that  they  will  not  lie  to  us. 

Hugh.  My  lord,  I  am  accu.sed  by  them  ;  therefore  I  shall  not  agree  to  them.  Be- 
sides, my  lord,  I  am  a  knight,  and  I  ought  not  to  be  tried  except  by  my  peers.^ 

The  .Justiciar.  Since  you  are  a  knight,  we  are  willing  that  you  be  judged  by  your 
peers.  And  knights  were  named;  and  he  was  asked  if  he  wished  to  propound  any 
challenges  against  them. 

Hugh.  My  lord,  I  do  not  agree  to  them ;  you  shall  take  whatever  inquisition  you 
will  from  your  office,  but  I  will  not  agree. 


CHAP.  II.]  KEX   V.   HUGH.  17 

The  Justiciar.  Lord  Hugh,  if  you  will  agree  to  them,  God  willing,  they  will  find 
for  you  if  you  will  only  consent  to  them.  But  if  you  will  refuse  the  common  law, 
you'will  incur  the  penalty  therefor  ordained,  to  wit,  "  one  day  you  shall  eat,  and  the 
next  day  you  shall  drink  ;  and  ou  the  day  when  you  drink  you  shall  not  eat,  and  e 
conlra;  and  you  shall  eat  burley-bread,  and  not  wheaten-hread,  and  tlrink  water,"  &c 
explaining  many  reasons  why  it  would  not  be  well  to  delay  at  this  point,  but  would  be 
better  to  agree  to  these. 

flu(/h.  I  will  agree  to  my  peers,  but  not  to  the  twelve  by  whom  I  am  accused ; 
wlierefore  hear  my  challenges  against  them. 

Thk  Justiciar.  Willingly;  let  them  be  read;  but  if  you  have  anything  to  say 
wherefore  they  ought  to  be  removed,  say  it  with  your  own  voice  or  in  writing. 

Ilwjh.     My  lord,  I  pray  counsel,  for  I  cannot  read. 

The  Justiciar.     No,  for  it  is  a  matter  touching  our  Lord  the  King. 

Hu(jh.     Do  you  take  them  and  read  them. 

The  Justiciar.     No,  for  they  ought  to  be  proposed  by  your  own  mouth. 

Hugh.     But  I  cannot  read  them. 

The  Justiciar.  How  is  this,  that  you  would  have  claimed  your  benefit  of  clergy, 
and  cannot  read  your  challenges?  (Hugh  stood  silent  in  confusion.)  Do  not  be 
struck  dumb,  now  is  the  time  to  talk.  (To  Lord  N.  de  Leyc.)  Will  you  read  Lord 
Hugh's  challenges  ? 

Lord  N.  aiy  lord,  if  I  do,  let  me  have  the  book  which  he  has  in  his  hands.  (After 
receiving  it)  My  lord,  here  are  written  challenges  against  several ;  sliall  I  read  them 
aloud  ? 

The  Justiciar.  No,  just  read  them  secretly  to  the  prisoner,  for  they  ought  to  be 
offered  by  his  own  mouth.  And  so  it  was  done.  And  when  they  had  been  offered  by 
his  own  mouth,  since  they  were  found  true  challenges,  those  against  whom  they  were 
offered  were  removed  from  the  inquisition. 

The  Justiciar.  We  challenge  Lord  Hugh  of  the  rape  of  a  certain  woman,  he 
denies  it,  and  is  asked  how  he  will  be  tried  ;  he  says,  by  a  good  jury  ;  wherefore  for 
good  or  ill  he  puts  himself  upon  you  ;  and  so  we  enjoin  you  by  virtue  of  your  oath,  tell 
us  whether  Lord  Hugh  ravished  the  aforesaid  woman  or  not. 

The  twelve.     We  say  that  she  was  ravished  by  force  by  Lord  Hugh's  men. 

The  Justiciar.     Was  Hugh  consenting  to  the  act  or  not  ? 

The  twelve.     No. 

The  Justiciar.    Did  they  know  her  carnally  ? 

The  twelve.     Yes, 

The  Justiciar.     Was  the  woman  unwilling  or  consenting  ? 

The  twelve.     Consenting.^ 

The  Justiciar.    Lord  Hugh,  since  they  acquit  yon,  we  acquit  yon. 


^  Magna  Charta  (9  H.  3.)  c.  29.  No  freeman  shall  be  taken,  or  imprisoned,  or  be 
disseised  of  his  freehold,  or  liberties,  or  free  customs,  or  be  outlawed,  or  exiled,  or 
any  otherwise  destroyed ;  nor  we  will  not  pass  upon  him  nor  condemn  him,  but  by 
lawful  judgment  of  his  peers,  or  by  the  law  of  the  land.  We  will  sell  to  no  man,  we 
will  not  deny  or  defer  to  any  man  either  justice  or  right. 

*  Credo  quod  deberet  hie  quod  tamen  post  defuit.  —  Rep. 


13  INDICTMENT.  [CHAP.  III. 


CHAPTER  m. 
THE  INDICTMENT. 


SECTION  I. 

General  Requisites  of  an  Indictment. 

2  Hawkins,  Pleas  of  the  Crown,  eh.  25,  Sect.  55.  No  periphrasis  or 
circumlocutiou  whatsoever  will  suppl}'  those  words  of  art  which  the  law 
hath  appropriated  for  the  description  of  the  offence,  as  murdravit,  in 
an  indictment  of  murder ;  cepit^  in  an  indictment  of  larcen}' ;  inayhem- 
iavit,  in  an  indictment  of  maim ;  felonice,  in  an  indictment  of  any 
felony  whatever ;  Intrglariter,  or  hurgidariter,  or  else  burgalariter,  in 
an  indictment  of  burglar}' ;  proditorie,  in  an  indictment  of  treason ; 
contra  ligeantiae  suae  debitum,  in  an  indictment  of  treason  against  the 
king's  person. 

2  Hawkins,  Pleas  of  the  Crown,  ch.  25,  Sect.  62,  "Where  one  material 
part  of  an  indictment  is  repugnant  to  another  the  whole  is  void  ;  for 
the  law  will  not  admit  of  such  nonsense  and  absurdities  in  legal  pro- 
ceedings, which  if  suffered,  would  soon  introduce  barbarism  and  con- 
fusion. Also  it  takes  off  much  from  the  credit  of  an  indictment  that 
those  by  whom  it  is  found  have  contradicted  themselves.  And  upon 
this  ground  .  ,  .  it  hath  been  adjudged  that  an  indictment  for  selling 
iron  with  false  weights  and  measures  is  void,  not  only  because  it  is 
absurd  to  suppose  that  iron  could  be  sold  by  measure,  but  also  because 
it  is  repugnant  and  inconsistent  that  it  should  be  so  sold  at  the  same 
time  when  it  was  sold  by  weight.^ 

*  Every  indictment  or  information  ought  to  contain  a  complete  description  of 
such  facts  and  circumstances  as  constitute  the  crime,  without  inconsistency  or  repug- 
nancy ;  and,  except  in  particular  cases,  where  tlie  precise  technical  expressions  are 
required  to  be  used,  there  is  no  rule  that  other  words  shall  be  employed  than  such  as 
are  in  ordinary  use ;  or  that  in  indictments  or  other  pleadings  a  different  sense  is  to  be 
put  upon  tliem  than  what  they  bear  in  ordinary  acceptation.  And  if,  where  the  sense 
may  be  ambiguous,  it  is  sufficiently  marked  by  the  context,  or  other  means,  in  what 
sense  they  are  intended  to  be  used,  no  objection  can  be  made  on  the  ground  of  repug- 
nancy, whicli  only  exists  where  a  sense  is  annexed  to  words  which  is  either  absolutely 
inconsistent  therewith,  or  being  apparently  so,  is  not  accompanied  by  anything  to  ex- 
plain or  define  tliem.  If  the  sense  be  clear,  nice  exceptions  ought  not  to  be  regarded  ■ 
in  respect  of  which  Lord  Hale  (2  Hale's  V.  C.  193)  says  that  "  more  offenders  escape 
by  the  over-easy  ear  given  to  exceptions  in  indictments  than  by  their  own  innocence, 


SECT.  I.]  STATE   V.   BROWN.  19 

2  Hawkins,  Pleas  of  the  Crown,  8th  ed.,  ch.  25,  Sects.  118, 119,  126, 
127,  128.  As  to  the  ninth  general  point  of  this  chapter,  viz.:  What 
onght  to  be  the  form  of  the  caption  of  an  indictment.  I  shall  take  it 
for  granted  that  every  such  caption  is  erroneous,  which  doth  not  set 
forth  with  proper  certainty  both  the  court  in  which,  and  the  jurors  by 
whom,  and  also  the  time  and  place  at  which,  the  indictment  was  found. 
As  to  the  first  of  these  particulars,  viz. :  What  certainty  is  necessary 
in  the  caption  of  an  indictment  in  respect  to  the  court  before  which  it 
was  found.  It  is  certain  that  every  such  caption  must  shew  that  the 
indictment  was  taken  before  such  a  court  as  had  jurisdiction  over  the 
offence  indicted. 

As  to  the  second  particular,  viz. :  What  certainty  is  necessary  in  the 
caption  of  an  indictment  in  respect  of  the  jurors  by  whom  it  was  found. 
It  seems  agreed  that  no  caption  of  an  indictment,  whether  found  at  a 
court-leet,  or  other  inferior  court,  can  be  good  without  expressly  shew- 
ing that  the  jurors  who  found  it  were  of  the  county,  city,  or  burgh,  or 
other  precinct  for  which  the  court  was  holden,  and  that  they  were  at 
least  twelve  in  number,  and  also  that  they  found  the  indictment  upon 
their  oaths. 

As  to  the  third  particular,  viz. :  What  certainty  is  necessary  in  the 
caption  of  an  indictment  in  respect  of  the  time  when  it  was  found.  It 
seems  agreed  that  such  caption  must  set  forth  a  certain  day  and  j'ear 
when  the  court  was  holden  before  which  the  indictment  was  found. 

As  to  the  fourth  particular,  viz. :  What  certainty  is  necessary  in  the 
caption  of  an  indictment  in  respect  of  the  place  where  it  was  found.  It 
seems  agreed  that  if  such  caption  either  set  forth  no  place  at  all  where 
the  indictment  was  found,  or  do  not  shew  with  sufficient  certainty  that 
the  place  set  forth  is  within  the  jurisdiction  of  the  court  before  which  it 
was  taken,  [it]  is  insufficient. 


STATE  V.  BROWN. 
Supreme  Court  of  North  Carolina.     1819. 

[Reported  3  Murphy,  224.] 

The  indictment  against  the  defendant  was  in  the  following  words, 
to  wit :  — 

"  The  Jurors  for  the  State,  upon  their  oaths,  present  that  John 
Brown,  late  of  the  County  of  Camden,  shop-keeper,  on  the  first  day  of 
February,  1817,  and  continually  thereafter  up  to  the  time  of  taking 

and  many  heinous  and  crying  offences  escape  by  these  unseemly  niceties,  to  the  re- 
proach of  the  law,  to  the  shame  of  the  government,  and  to  the  encouragement  of  vil- 
lany  and  the  dishonor  of  God."  —  Lord  EUenboro,  C.  J.,  in  Rex  v.  Stevens,  5  East, 
244,  259. 


20  DAMON'S   CASE.  [CIIAP.  III. 

this  inquisition  at  Camclcu  aforesaid,  was,  and  yet  is,  a  common 
Sabbatb-brtaker  and  proplianer  of  the  Lord's  day,  commonly  called 
Sunday  ;  and  that  the  said  John  Brown,  on  the  day  aforesaid,  being 
Lord's  dav,  and  on  divers  other  days  and  times,  as  well  before  as  since, 
being  Lord's  day,  did  then  and  there  keep  and  maintain  a  certain  open 
shop,  and  on  the  days  and  times  aforesaid,  there  sold  and  exposed  to 
sale  divers  goods,  wares,  and  spirituous  liquors,  to  negroes  and  others, 
to  the  great  damage  of  the  good  citizens  of  this  State,  and  against  the 
p<-ace  and  dignity  of  the  State." 

The  defendant  submitted  ;  but  the  court  entertaining  a  doubt  whether 
tlie  facts  set  forth  in  the  indictment  constituted  an  indictable  offence  as 
tlierein  set  forth,  sent  the  case  to  this  court ;  and 
Henderson,  J.,  delivered  the  opinion  of  the  court:  — 
Tiic  indictment  charges  that  the  defendant  is  a  common  Sabbath- 
breaker  and  prophaner  of  the  Lord's  day.  If  it  had  stopped  here,  it 
would  certainly  have  been  insufficient,  as  it  would  not  shew  how,  or  in 
what  manner,  he  was  a  common  Sabbath-breaker  and  prophaner  of  the 
Loid's  da}'.  Tlie  court,  upon  an  inspection  of  the  record,  must  be 
able  to  perceive  the  alleged  criminal  act :  for  an  indictment,  as  was 
once  well  observed  from  this  bench  by  Judge  Lowrie,  is  a  compound  ot 
law  and  fact.  The  latter  part  of  the  indictment  charges  that  the  de- 
fendant kept  an  open  shop  and  sold  divers  goods,  wares,  and  spirituous 
liquors  to  negroes  and  others  on  the  Sabbath.  This  offence,  as  charged, 
is  not  punishable  b}'  indictment ;  for  if  the  act  can  be  intended  to  be 
lawful,  it  shall  be  so  presumed,  unless  it  be  charged  to  be  done  under 
circumstances  which  render  it  criminal,  and  be  so  found  by  a  jur}-.  For 
ought  that  appears  to  the  coutrar}',  this  sale  might  have  been  to  the 
lame  or  weary  traveller,  or  to  others  to  whom  it  was  a  merit  to  sell,  in- 
stead of  a  crime ;  and  nothing  shall  be  intended  against  a  defendant. 
And  if  this  were  the  Sabbath-breaking  spoken  of  in  the  foregoing  part 
of  the  indictment,  taking  the  whole  together,  the  defendant  well  might 
Jiave  done  all  charged  against  him,  and  yet  have  committed  no  crime  ; 
and  as  this  may  have  been  the  case,  we  are  bound  to  presume  it ;  at 
least,  not  to  presume  to  the  contrary. 

The  Judgment  must  be  arrested. 


DAMON'S   CASE. 
Supreme  Judicial  Court  of  Maine.     1829. 

[Reported  6  Maine,  148.] 

Ik  this  case  the  defendant  was  indicted  for  that  he,  having  been  law- 
fully married  at  Reading  in  Massachusetts,  in  1805,  was  unlawfully 
again  married  to  another  woman,  at  Farmington  in  this  county,  in  1812, 


SECT.  l]  DAMON'S   CASE.  21 

the  former  wife  being  still  alive;  "against  the  peace  of  said  State,  and 
against  the  form  of  the  statute  in  such  case  made  and  provided." 

The  defendant  moved  for  a  new  trial,  because,  4th,  the  indictment 
was  defective.* 

Pakkis,  J.  The  only  remaining  question  presented  in  this  case  is 
as  to  the  sufficiency  of  the  indictment.  The  case  finds  that  the  second 
marriage  of  the  defendant  was  in  this  county,  in  1812.  Supposing  it 
to  have  been  proved  or  admitted  at  the  trial,  that  at  the  time  of  the 
second  marriage  the  first  wife  was  alive  (and  this  fact  must  necessarilv 
have  been  established  to  the  satisfaction  of  the  jury),  the  offence  set 
forth  in  the  indictment  was  committed  at  that  time,  and  consequently 
against  the  peace  of  the  then  existing  government  and  the  laws  thereof. 
It  could  not  have  been  an  offence  against  the  peace  of  the  State  of 
Maine,  or  in  violation  of  its  laws,  for  at  that  time  Maine  had  not  been 
invested  with  the  sovereign  power  of  a  State.  The  territor}'  was  a 
portion  of  Massachusetts,  and  the  inhabitants  were  amenable  to  the 
laws  of  that  sovereignty. 

Whoever  commits  an  offence  indictable  either  by  statute  or  at  com- 
mon law  is  guilty  of  a  breach  of  the  peace  of  that  government  which 
exercises  jurisdiction,  for  the  time  being,  over  the  place  where  such 
offence  is  committed  ;  and  in  setting  forth  the  offence  an  omission  to 
charge  it  as  having  been  done  against  the  peace  of  that  government  is 
fatal.  The  Queen  v.  Lane,  3  Salk.  199  ;  2  Ld.  Raymond,  1034.  It 
is  even  insufficient,  if  charged  as  against  the  peace  generally,  without 
naming  the  particular  sovereignt}',  whose  peace  is  alleged  to  have  been 
violated.  2  Hale's  P.  C.  188.  So,  also,  if  it  be  an  offence  created  by 
statute,  as  in  this  case,  the  indictment  must  allege  it  to  have  been  com- 
mitted against  the  form  of  the  statute,  or  it  will  be  fatal.  2  Mass. 
Rep.  116. 

Now  it  would  be  preposterous  to  allege  the  offence  to  have  been  com- 
mitted against  a  statute  of  the  State  of  Maine  ;  for  at  that  time  Maine 
had  no  statutes,  and  the  statute  touching  this  subject  which  has  since 
been  enacted  b^'  our  legislature  is  materially  different,  especiall}'  in  the 
penal  part,  from  the  statute  of  Massachusetts. 

As  the  indictment,  in  this  case,  sets  forth  a  statute  offence  committed 
in  the  year  1812,  b}'  a  person  subject  to  the  laws  of  Massachusetts,  in 
a  place  then  under  the  jurisdiction  of  that  government,  it  consequentlv 
must  have  been  against  the  peace  of  that  sovereignt}-  and  that  only  ; 
and  not  being  so  alleged,  the  prosecution  cannot  be  sustained.  The 
authorities  by  which  our  opinion  on  this  point  is  supported  are :  2 
Hale's  P.  C.  188  ;  2  Hawk.  ch.  25,  sect.  95  ;  Yelv.  66  ;  4  Com.  Dig. 
Indictment,  G.  6,  and  Rex  v.  Lookup,  3  Burr.  1903.  In  the  latter 
case,  Lookup  was  indicted  for  perjury-.  The  fact  was  charged  to  have 
been  committed  in  the  time  of  the  late  king,  whereas  the  indictment 
concluded  against  the  peace  of  the  present  king.     After  trial,  convic- 

1  Part  of  the  caae  not  relating  to  question  of  pleading  is  omitted. 


22 


COMMONWEALTH   V.   PEAY.  [CHAP.  III. 


tion  and  sentence,  Lookup  brought  a  writ  of  error  returnable  in  Parlia- 
ment, when  the  following  question  was  put  by  the  lords  to  the  judges : 
''  whether  the  perjurv  being  alleged  in  the  indictment  to  have  been  com- 
mitted in  the  time  of  the  late  king,  and  charged  to  be  against  the  peace 
of  the  now  king  is  fatal,  and  renders  the  indictment  insufficient."  The 
Lord  Baron  delivered  the  unanimous  opinion  of  the  judges  in  the  affirma- 
tive ;  and  upon  this  point  the  judgment  of  the  King's  Bench  was  re- 
versed and  the  defendant  discharged. 

Conformably  to  the  report  of  the  judge  who  tried  the  cause,  the  ver- 
dict must  be  set  aside  and  a  new  trial  granted. 


COMMONWEALTH  v.  PRAY. 
Supreme  Judicial  Court  of  Massachusetts.     1832. 

[Reported  13  Pick,  359.] 

The  defendant  was  indicted  as  follows,  on  the  statute  of  1786,  c.  68, 

"The  jurors,  &c.,  present  that  Edward  Pray  of  Braintree,  m  the 
County  of  Norfolk,  trader,  on  the  thirtieth  day  of  September,  in  the 
year  oV  our  Lord  one  thousand  eight  hundred  and  thirty,  and  on  divers 
other  days  between  that  day  and  the  twentieth  day  of  December  next 
following,  at  Braintree  aforesaid,  did  presume  to  be  and  was  a  common 
seller  of  wine,  beer,  ale,  cider,  brandy,  rum,  and  other  strong  liquors 
by  retail,  in  less  quantities  than  twenty-eight  gallons,  and  that  delivered 
and  carried  away  all  at  one  time,  a7id  did  at  said  Weymonth,  during 
all  the  time  between  the  days  aforesaid^  commo7iJy  and  habitually  sell 
to  divers  persons  to  the  jurors  unknown,  loine^  heer^  ale,  cider,  brandy, 
rum,  and  other  strong  liquors  by  retail,  in  less  quantities  than  tioenty- 
eight  gallons,  and  that  delivered  and  carried  away  all  at  one  time, 
he,  the  said  Edward  Pray,  not  being  first  duly  licensed  therefor  accord- 
ing to  law,"  &c. 

The  defendant  demurred  generally  to  the  indictment. 

Kingsbury ,  in  support  of  the  demurrer,  objected  to  the  indictment  on 
the  grounds  of  uncertainty  and  repugnanc}'.  The  allegations  that  the 
offence  was  committed  at  Braintree  and  at  "  said  Weymouth,"  are  re- 
pugnant, and  the  place  of  the  offence  is  rendered  uncertain.  2  Hale's 
P.  C.  180 ;  Bac.  Abr.  Indictment,  G  4  ;  Hawk.  bk.  2,  c.  25,  §  83  ; 
Cholmley's  case,  Cro.  Car.  465  ;  Wingfield's  case,  Cro.  Eliz.  739.  The 
general  rule  is  that  an  indictment  should  set  forth  the  particular  facts 
constituting  the  offence  charged.  There  are  some  exceptions,  as  in  the 
cases  of  a  common  barrator  and  a  common  scold,  but  the}'  do  not  em- 
brace the  offence  for  which  this  defendant  is  indicted.  2  Hale's  P.  C. 
182;  Hawk.  bk.  2,  c  25,  §  59.     The  second  allegation  in  the  indict' 


SECT.  I.]  COMMONWEALTH   V.   PRAY.  23 

inent  is  descriptive  of  the  offence,  and  is  repugnant  to  the  first  allega- 
tion, and  for  both  of  these  reasons  it  cannot  be  rejected  as  surplusage. 
Rex  u.  Holt,  2  Leach,  G76  ;  s.  c.  5  T.  R.  446  ;  3  Stark.  Ev.  1529  ;  Com. 
Dig.  Pleader,  E  12 ;  Co.  Lit.  303  b ;  Gould's  Pi.  155,  c.  3,  §  172. 

Austin,  Attorney-General,  for  the  Commonwealth,  said  that  the  clause 
in  the  indictment  printed  in  Italics  miglit  be  rejected  as  surplusage ;  1 
Chit.  Crim.  Law,  238  ;  Commonwealth  v.  Hunt,  4  Pick.  252  ;  and  that 
it  has  been  the  invariable  practice,  ever  since  this  statute  was  passed, 
to  set  forth  the  offence  in  this  general  form,  and  that  the  case  came 
within  the  reasons  of  the  exceptions  in  regard  to  common  barrators  and 
common  scolds. 

MoiiTON,  J.,  delivered  the  opinion  of  the  court.  This  case  comes 
before  us  on  general  demurrer ;  and  the  only  subject  for  our  considera- 
tion is  the  sufficiency  of  the  indictment.  It  is  framed  upon  the  first  sec- 
tion of  St.  1786,  c.  68.  That  section  contains  two  distinct  prohibitions, 
enforced  by  different  penalties.  The  first  clause  provides  that  no  person 
may,  without  being  duly  licensed,  "■  presume  to  be  a  common  victualler, 
innholder,  taverner,  or  seller  of  wine,  beer,  ale,  cider,  brandy,  rum,  or 
any  strong  liquors,  by  retail,"  under  a  penalty  of  twenty  pounds.  The 
second  clause  provides  that  if  any  person  shall,  without  license,  "sell  any 
spirituous  liquors,  or  any  mixed  liquors,  part  of  which  is  spirituous," 
he  shall  incur  a  penalty  of  not  less  than  forty  shillings,  nor  more  than 
six  pounds.  The  first  offence  consists  in  presuming  to  be  a  common 
victualler,  or  common  seller,  &c.  ;  the  second,  in  actually  selling.  Al- 
though the  first  offence  may  not  be  completed  without  committing  the 
second,  j-et  the  second  may  be,  without  committing  the  first. 

The  indictment  contains  two  distinct  charges.  The  one,  in  general 
terms,  that  the  defendant  did  presume  to  be  and  was  a  common  seller, 
&c.,  — in  the  words  of  the  statute.  The  other,  that  the  defendant  did 
commonly  and  habitually  sell  to  divers  persons  to  the  jurors  unknown, 
wine,  &c.  The  first  is  laid  with  a  proper  venue,  viz.,  "  at  Braintree 
aforesaid,"  Braintree  having  just  before  been  described  as  in  the  County 
of  Norfolk.  In  the  second,  the  offence  is  alleged  to  have  been  com- 
mitted "  at  said  Weymouth  ; "  whereas  Weymouth  had  not  before  been 
named.  This  unquestionably  <s  a  mere  clerical  error.  But  it  is  incon- 
sistent with  the  former  venue,  and  clearly  insufficient.  Hawk.  bk.  2, 
c.  25,  §  83  ;  2  Hale's  P.  C.  180. 

The  next  inquiry  is  whether  this  defective  averment  may  not  be  re- 
jected as  surplusage.  It  does  not  contradict  any  other  averment  in  the 
indictment ;  it  is  not  descriptive  of  the  identity  of  the  charge,  or  of 
anything  essential  to  it,  nor  does  it,  in  any  degree  tend  to  show  that  no 
offence  was  committed.  3  Stark.  Ev.  1529  ;  1  Chit.  Crim.  Law,  238; 
Gould's  PI.  154,  155,  and  authorities  there  cited ;  Commonwealth  v. 
Hunt,  4  Pick.  252. 

The  second  allegation,  embracing  all  between  the  words  "  all  at  one 
time,"  where  they  first  occur,  and  the  words  "  he  the  said  Edward,"  may 
properlj-  be  rejected  as  surplusage.     Indeed  it  must  be  excluded,  for  it 


24 


COMMONWEALTH   V.    PKAY.  [CHAP.  IIL 


contains  no  legal  averment ;  and  the  indictment  must  be  treated  as  if 
originally  drawn  without  it.  But  as  it  cannot  aid  the  indictment,  so  it 
will  not  "injure  it.      Utile  per  inutile  non  vitiatur. 

The  indictment  describes  the  otfence  in  the  veiy  words  of  the  statute. 
This  usually  is  not  sufficient.  The  established  rules  of  pleading  require 
the  essential  facts  and  circumstances  to  be  particularly,  unambiguously, 
and  certainly  stated,  that  the  court  may  know  whether  they  amount  to 
a  violation  of  the  law,  and  what  punishment,  if  any,  they  require.  A 
"eueral  charge,  as  that  a  man  is  a  common  thief,  common  forestaller, 
or  common  champertor,  &c.,  is  clearly  insufficient.     Hawk,  bk.  2,  c  25, 

§  59. 

But  this  general  rule,  useful  and  important  as  it  may  be,  is  not  with- 
out its  exceptions ;  for  there  are  classes  of  cases  to  which  it  does  not 
applv.  Wherever  the  crime  consists  of  a  series  of  acts,  they  need  not 
l)e  specially  described,  for  it  is  not  each  or  all  the  acts  of  themselves, 
but  the  practice  or  habit  which  produces  the  principal  evil  and  consti- 
tutes the  crime. 

Thus,  it  is  sufficient  to  charge  a  person  with  being  a  common  bar- 
rator, or  a  common  scold.  Hawk.  bk.  2,  c.  25,  §  59.  And  it  is  not 
necessary  to  set  forth  any  particular  acts  of  barratry  or  of  scolding ; 
for  it  is  the  general  practice,  and  not  the  particular  acts  which  consti- 
tutes the  offence.  They  go  to  make  up  the  evidence  of  the  crime,  but 
are  not  the  crime  itself.  And  it  is  never  necessary  in  pleadings,  civil 
or  criminal,  to  set  forth  the  evidence. 

There  is  another  class  of  cases,  which,  though  not  very  similar  to  the 
above,  seem  to  come  within  the  same  exception.  It  is  sufficient  to 
charge  a  person  generally  with  keeping  a  house  of  ill-fame,  a  disorderly 
house,  or  a  common  gaming  house.  Hawk.  bk.  2,  c.  25,  §  57 ;  Davis's 
Prec.  of  Indictments,  140,  198  ;  Rex  v.Higginson,  2  Burr.  1233.  Now 
altliough  all  the  acts  which  make  up  these  general  offences  are  in  them- 
selves unlawful,  it  is  not  necessary  to  set  them  forth.  The  several  acts 
may  be  indicted  and  punished  separately,  but  the  keeping  the  house  is 
a  distinct  offence,  and  as  such  liable  to  punishment. 

This  indictment  comes  within  these  principles.  Although  to  make 
out  the  statute  offence  it  may  be  necessary  to  prove  particular  acts, 
such  as  entertaining  compau}'  or  selling  spirits,  3'et  these  acts  are  only 
evidence  of  the  general  charge,  and  ma}'  be  proved,  but  need  not  be 
alleged. 

There  is  also  one  other  class  of  cases,  well  settled,  as  we  think,  which 
are,  in  principle,  similar  to  the  case  under  consideration.  It  is  made 
the  duty  of  towns  to  keep  in  repair  all  highways  within  their  limits ; 
and  for  a  neglect  of  this  dut}'  the}'  are  liable,  not  onl}'  to  indictment, 
but,  if  any  individual  injur}-  occurs  by  reason  of  it,  to  a  civil  action. 
St.  1786,  c.  81.  In  indictments  and  declarations  on  this  statute,  which 
are  of  almost  daily  occurrence,  the  practice  never  has  been  to  set  forth 
minutely  the  defects  in  the  highway.  But  a  general  allegation,  that  a 
certain  highway  is  out  of  repair,  ruinous,  and  unsafe,  has  always  been 


SECT.  I.]  HIRN   V.   STATE.  25 

deemed  sufficient.  Hawk.  bk.  2,  c.  25,  §  68  ;  Davis's  Prec.  of  Indict- 
ments, 195  ;  Rider  v.  Smith,  3  T.  R.  766. 

The  object  of  the  rule  requiring  the  charge  to  be  particular!}-,  cer- 
tainly, and  technically  set  forth,  is  three-fold.  First,  to  appri.se  the 
defendant  of  the  precise  nature  of  the  charge  made  against  him.  Sec- 
ondl}-,  to  enable  the  court  to  determine  whether  the  facts  constitute  an 
offence  and  to  render  the  proper  judgment  thereon.  And  thirdly,  that 
the  judgment  may  be  a  hax  to  any  future  prosecution  for  the  same 
oilcnce.     3  Stark.  Ev.  1527. 

The  allegations  remaining  in  this  indictment  entirely'  satisfy  all  these 
olijects.  They  fully  apprise  the  defendant  of  the  nature  of  the  charge 
preferred  against  him.  When  it  is  alleged  that  at  a  certain  time  he 
did  presume  to  be  and  was  a  common  innholder  and  common  seller  of 
spirits,  «&c.,  he  cannot  be  ignorant  of  the  offence  which  is  imputed  to 
him.  Besides,  the  court,  according  to  the  modern  practice,  in  all  cases 
of  general  allegations,  take  care  that  the  defendant  shall  not  be  sur- 
prised, but  that  he  shall  seasonably  be  furnished  with  such  specifica- 
tions and  particular  statements  as  maj'  be  necessary  to  enable  him  to 
prepare  for  his  trial,  and  to  meet  all  the  proof  which  may  be  brought 
against  him.  It  is  admitted  that  if  the  second  allegation  were  suffi- 
cient, the  whole  indictment  would  be  good.  Now  it  is  apparent  that 
this  second  clause  gives  no  information  as  to  the  nature  of  the  offence, 
or  of  the  particular  facts  to  be  proved,  not  contained  in  the  first. 

That  the  indictment  is  sufficient  to  enable  the  court  to  render  the 
proper  judgment,  and  that  it  will  be  a  bar  to  all  future  prosecutions 
for  the  same  offence,  we  cannot  doubt.  In  this  case  the  time  enters 
into  the  essence  of  the  offence,  and  with  entire  certainty  fixes  the  iden- 
tity. The  defendant  can  never  again  be  punished  for  being  a  common 
seller,  &c.,  within  the  time  described  in  the  indictment.  But  even  if 
the  identity  were  not  proved  bj*  the  record,  it  might,  as  in  man)'  other 
cases,  he  established  by  proof  aliunde. 

Upon  the  whole,  the  court  are  of  opinion,  that  the  second  clause  in 
the  indictment  may  properl}-  be  rejected  as  surplusage ;  that  the  indict- 
ment, without  it,  contains  all  the  allegations  necessarj'  to  its  support ; 
and  therefore  that  the  demurrer  must  be  overruled. 


HIRN  V.   STATE. 
Supreme  Court  of  Ohio.     1852. 

{Reported  1  Ohio  St.  15.] 

Hartley,  J.^    It  may  be  important  to  notice  the  question  of  the  suf- 
ficiency of  the  indictment,  for  the  purpose  of  settling  a  rule  of  pleading 

^  Part  of  the  case  not  relating  to  the  question  of  pleading  is  omitted. 


26  HIRN  V.   STATE.  [CHAP.  IIL 

in  ret^ard  to  which  the  authorities  are  not  clear  and  somewhat  conflict- 
ing. This  question  is  now  relied  on  by  the  plaintiff  in  error,  although 
not  raised  in  the  Common  Pleas. 

It  is  claimed  that  the  indictment  is  defective  on  the  ground  that  it 
does  not  contain  a  negative  averment,  that  the  sale  of  spirituous  liquor 
charged  was  not  for  medicinal  or  pharmaceutical  purposes.  The  penal 
offence  is  described  or  defined  in  the  first  section  of  the  act  of  1851,  and 
at  the  close  of  the  section  is  a  proviso  in  these  words  :  "  Provided,  that 
nothing  contained  in  this  section  shall  be  so  construed  as  to  make  it 
unlawful  to  sell  any  spirituous  liquors  for  medicinal  and  pharmaceutical 
purposes." 

The  rule  laid  down  in  the  authorities  on  this  subject  is  generally 
defined  in  this  manner :  that  when  a  criminal  or  penal  statute  contains 
an  exception  in  the  enacting  clause,  that  exception  must  be  negatived 
in  the  indictment ;  but  where  the  statute  contains  provisos  and  excep- 
tions in  distinct  clauses,  it  is  not  necessary  to  allege  that  the  defendant 
does  not  come  within  the  exceptions,  nor  to  negative  the  provisos. 
1  Chitty's  Crim.  Law,  284.  In  some  of  the  authorities  the  negative 
allegation  is  made  to  depend  upon  the  place  in  the  statute  where  it 
occurs,  1  Term  R.,  141  ;  in  others  upon  the  question  whether  the  ex- 
ception or  proviso  qualifies  the  description  of  the  offence.  In  some, 
the  rule  is  made  to  depend  upon  whether  the  exception  be  a  matter  of 
description  in  the  negative,  the  affirmative  of  which  would  be  a  good 
excuse  for  the  defendant,  2  Hawk.  255,  112  ;  while  in  others,  it  is  made 
to  depend  upon  the  distinction  between  a  proviso  in  the  description  of 
the  offence,  and  a  subsequent  exemption  from  the  penalty  under  certain 
circumstances.  This  is  Lord  Mansfield's  rule  in  Spiers  v.  Parker, 
1  Term  R.,  86,  87. 

The  confusion  which  seems  to  exist  in  regard  to  this  rule  has  arisen 
from  the  various  modes  adopted  and  the  indefinite  language  used  in 
defining  it,  and  the  multiplicity  of  forms  in  which  exceptions,  qualifica- 
tions, and  exemptions  are  introduced  into  statutes.  What  constitutes 
the  enacting  clause,  in  the  meaning  of  some  of  the  authorities,  is  not 
clear,  A  clause  is  a  distinct  member  or  subdivision  of  a  sentence,  in 
which  the  words  are  inseparably  connected  with  each  other  in  sense,  and 
cannot,  with  propriety,  be  separated  by  a  point ;  3'et  very  frequentl}'  the 
language  creating  and  describing  the  offence  and  fixing  the  penaltj',  in- 
cludes several  distinct  clauses  and  sometimes  a  whole  section. 

It  is  requisite  that  every  indictment  should  contain  a  substantial 
description  of  all  the  circumstances  descriptive  of  the  offence  as  defined 
in  the  statute,  so  as  to  bring  the  defendant  precisely  within  it.  And 
tlie  only  substantial  reason  for  requiring  this  negative  averment  at  all 
is  tliat  without  it  the  description  of  the  offence  would  not  be  complete. 
When,  therefore,  the  matter  of  the  proviso  or  exception  in  the  statute, 
whether  it  be  embraced  within  what  has  been  termed  the  enacting  clause 
or  not,  enters  into  and  becomes  a  part  of  the  description  of  the  offence, 
or  a  material  qualification  of  the  language  which  defines  or  creates  the 


SECT.  I.]  COMMONWEALTH   V.   PERRIGO.  27 

offence,  the  negative  allegation  in  the  indictment  is  requisite.  But 
wliere  it  is  a  subsequent  exemption,  or  occurs  in  a  separate  and  distinct 
clause  or  part  of  the  statute,  disconnected  with  the  statutory  description 
of  the  offence,  the  negative  averment  is  uuneccssar}-. 

In  the  case  before  the  court,  the  matter  of  the  proviso  in  the  first  sec- 
tion of  the  act  of  1851,  points  directl}'  to  the  character  of  the  offence, 
is  in  the  same  sentence  with  it,  and  made  a  material  qualification  in  the 
statutory  description  of  it. 

It  is  the  opinion  of  the  majority  of  the  court  that  the  indictment 
should  have  contained  the  negative  averment,  that  the  sale  of  the  liquor 
was  not  for  medicinal  or  pharmaceutical  purposes,  and  is,  therefore, 
defective. 

The  judgment  of  the  court  of  Common  Pleas  is  reversed. 

TiiuuMAN,  J.,  having  been  of  counsel  for  the  plaintiff  in  error,  did 
not  sit  in  this  case. 

CoRwiN,  J.,  dissented  from  the  opinion  of  the  court  as  to  the  suflH- 
ciency  of  the  indictment,  but  concurred  in  the  decision  on  the  other 
points. 


COMMONWEALTH  v,  PERRIGO. 
Court  of  Appeals  of  Kentucky.     1860. 

[Reported  3  Metcalfe,  5.] 

A,  J.  James^  Attornej^  General,  for  Commonwealth,  cited  Crim.  Code, 
Sect.  125. 

Kincheloe  &  Jennings,  for  appellee,  cited  Commonwealth  v.  White, 
18  B.  Mon.,  493  ;  Commonwealth  v.  Cook,  13  B.  Mon.,  149. 

Judge  Duvall  delivered  the  opinion  of  the  court:  — 

The  indictment  charges  that  the  defendant  suffered  certain  named 
persons  "to  play  in  a  house,  or  on  premises  in  the  count}'  aforesaid, 
then  in  the  occupation  and  under  the  control  of  tlie  said  Perrigo,  a 
game  of  cards,  at  which  game  of  cards,  pla3'ed  as  aforesaid,  money  or 
property  was  won  and  lost." 

This  indictment  was  held  insuflficient  upon  demurrer. 

The  rule  is  well  settled  that  an  indictment  must  set  forth  the  offence 
with  such  certaint}'  as  to  apprise  the  defendant  of  the  nature  of  the 
accusation  upon  which  he  is  to  be  tried,  and  to  constitute  a  bar  to  any 
subsequent  proceeding  for  the  same  offence. 

Tested  by  this  rule,  tlie  indictment  under  consideration  is  obviously 
defective.  Whether  the  defendant  was  to  be  tried  for  suffering  gaming 
in  his  house,  or  for  suffering  gaming  on  premises  elsewhere  in  the 
count}' ;  or  whether  it  was  for  suffering  a  game  upon  which  monej'  was 
won  and  lost,  or  upon  which  property  was  won  and  lost,  the  defendant 
could  not  learn  from  anything  contained  in  the  indictment,  and  could 


23 


UNITED   STATES   V.    CRUIKSHANK.  [CHAP.  IIL 


not,  therefore,  be  presumed  to  have  been  able  to  make  any  available  or 
uirectual  preparation  for  defence  against  so  vague  and  uncertain  an 
accusation.  Nor  would  a  conviction  for  sutTering  a  game  for  money  to 
l.c  plaved  in  liis  house  have  constituted  a  bar  to  a  subsequent  indict- 
ment for  sutfering  a  game  for  property  to  be  played  elsewhere  on  his 
premises. 

Would  it  be  pretended  that,  under  the  2d  section  of  the  statute  pun- 
ishing crimes  against  the  person,  it  would  be  sufficient  to  charge  that 
the  defendant  maliciously  shot  at  and  wounded  another,  with  a  gun  or 
other  instrument,  or  that  the  defendant  cut  or  stabbed  such  person 
with  a  knife  or  other  deadly  weapon  ?  And  yet  it  might,  with  the  same 
propriety,  be  said,  in  support  of  such  an  indictment,  that  it  charged  but 
one  offence  ;  that  the  shooting  and  stabbing  were  but  the  allegation  of 
the  different  modes  and  means  by  which  the  offence  was  committed,  and 
that  under  the  125th  section  of  the  Criminal  Code  such  different  modes 
and  means  might  be  alleged  in  the  alternative.  It  is  clear,  however, 
that  the  section  referred  to  cannot  admit  of  any  such  construction. 

The  Judgment  is  affirmed. 


UNITED   STATES   v.   CRUIKSHANK. 
Supreme  Court  of  the  United  States.     1875. 

[Reported  92  U.  S.  542.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Louisiana. 

This  was  an  indictment  for  conspiracy  under  the  sixth  section  of  the 
act  of  May  30,  1870,  known  as  the  Enforcement  Act  (16  Stat.  140), 
and  consisted  of  thirty-two  counts. 

The  first  count  was  for  banding  together,  with  intent  "  unlawfully 
and  feloniously  to  injure,  oppress,  threaten,  and  intimidate"  two  citi- 
zens of  the  United  States,  "  of  African  descent  and  persons  of  color," 
"with  the  unlawful  and  felonious  intent  thereby  "  them  "to  hinder 
and  prevent  in  theii  respective  free  exercise  and  enjoj'ment  of  their 
lawful  right  and  privilege  to  peaceably  assemble  together  with  each 
other  and  with  other  citizens  of  the  said  United  States  for  a  peaceable 
and  lawful  purpose." 

The  fifth  avers  an  intent  to  hinder  and  prevent  the  same  persons 
"  in  the  exercise  and  enjoyment  of  the  rights,  privileges,  immunities, 
and  protection  granted  and  secured  to  them  respectivel}-  as  citizens  of 
the  said  United  States,  and  as  citizens  of  the  said  State  of  Louisiana, 
by  reason  of  and  for  and  on  account  of  the  race  and  color  "  of  the  said 
persons. 

The  eighth  avers  an  intent  "  to  prevent  and  hinder"  the  same  per- 
sons "in  their  several  and  respective  free  exercise  and  enjoyment  of 


SECT.  I.]  UNITED   STATES   V.   CRUIKSHANK.  29 

every,  each,  all,  and  singular  the  several  rights  and  privileges  granted 
and  secured"  to  them  "  by  the  constitution  and  laws  of  the  United 
States."  * 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court :  — 

We  come  now  to  consider  the  fifth  and  thirteenth  and  the  eighth  and 
sixteenth  counts,  which  may  be  brought  together  for  that  purpose. 
The  intent  charged  in  the  fifth  and  thirteenth  is  "to  hinder  and  pre- 
vent the  parties  in  their  respective  free  exercise  and  enjoyment  of  the 
rights,  privileges,  immunities,  and  protection  granted  and  secured  to 
them  respectively  as  citizens  of  the  United  States,  and  as  citizens  of 
said  State  of  Louisiana,"  "  for  the  reason  that  they,  .  .  .  being  then 
and  there  citizens  of  said  State  and  of  the  United  States,  were  persons 
of  African  descent  and  race,  and  persons  of  color,  and  not  white  citizens 
thereof;"  and  in  the  eighth  and  sixteenth,  to  hinder  and  prevent  them 
"  in  their  several  and  respective  free  exercise  and  enjoyment  of  every, 
each,  all,  and  singular  the  several  rights  and  privileges  granted  and  se- 
cured to  them  by  the  constitution  and  laws  of  the  United  States."  The 
same  general  statement  of  the  rights  to  be  interfered  with  is  found  in 
the  fifth  and  thirteenth  counts. 

According  to  the  view  we  take  of  these  counts,  the  question  is  not 
whether  it  is  enough,  in  general,  to  describe  a  statutory'  offence  in  the 
language  of  the  statute,  but  whether  the  oflTence  has  here  been  described 
at  all.  The  statute  provides  for  the  punishment  of  those  who  conspire 
"  to  injure,  oppress,  threaten,  or  intimidate  any  citizen,  with  intent  to 
prevent  or  hinder  his  free  exercise  and  enjoyment  of  any  right  or  privi- 
lege granted  or  secured  to  him  by  the  constitution  or  laws  of  the  United 
States."  These  counts  in  the  indictment  charge,  in  substance,  that  the 
intent  in  this  case  was  to  hinder  and  prevent  these  citizens  in  the  free 
exercise  and  enjoyment  of  "  every,  each,  all,  and  singular  "  the  rights 
granted  them  by  the  Constitution,  &c.  There  is  no  specification  of 
any  particular  right.     The  language  is  broad  enough  to  cover  all. 

In  criminal  cases,  prosecuted  under  the  laws  of  the  United  States, 
the  accused  has  the  constitutional  right  "  to  be  informed  of  the  nature 
and  cause  of  the  accusation,"  Amend.  VI.  In  United  States  v.  Mills 
7  Pet.  142,  this  was  construed  to  mean,  that  the  indictment  must  set 
forth  the  offence  "  with  clearness  and  all  necessarv  certainty,  to  apprise 
the  accused  of  the  crime  with  which  he  stands  charged  ;  "  and  in  United 
States  V.  Cook,  17  Wall.  174,  that  "  every  ingredient  of  which  the  offence 
is  composed  must  be  accuratel}'  and  clearly  alleged."  It  is  an  elemen- 
tary principle  of  criminal  pleading  that  where  the  definition  of  an 
offence,  whether  it  be  at  common  law  or  bj-  statute,  "  includes  generic 
terms,  it  is  not  sufficient  that  the  indictment  shall  charge  the  offence  in 
the  same  generic  terms  as  in  the  definition ;  but  it  must  state  the 
species, —  it  must  descend  to  particulars."  1  Arch.  Cr.  Pr.  and  PI., 
291.     The  object  of  the  indictment  is,  first,  to  furnish  the  accused  with 

1  Only  BO  much  of  the  case  as  relates  to  the  fifth  and  eighth  counts  is  printed  here. 


50  UNITED  STATES  V.   CRUIKSHANK.  [CHAP.  III. 

such  a  description  of  the  charge  against  him  as  will  enable  him  to  make 
iiis  defence,  and  avail  himself  of  his  conviction  or  acquittal  for  protec- 
tiun  a^^ainst  a  further  prosecution  for  the  same  cause  ;  and,  second,  to 
infurm  the  court  of  the  facts  alleged,  so  that  it  may  decide  whether  the}' 
are  sulliciont  in  law  to  support  a  conviction,  if  one  should  be  had.  For 
this,  facts  are  to  be  stated,  not  conclusions  of  law  alone.  A  crime  is 
made  up  of  acts  and  intent ;  and  these  must  be  set  forth  in  the  indict- 
ment, with  reasonable  particularity  of  time,  place,  and  circumstances. 

It  is  a  crime  to  steal  goods  and  chattels  ;  but  an  indictment  would  be 
bad  that  did  not  si)ecify  with  some  degree  of  certainty  the  articles 
stolen.  This,  because  the  accused  must  be  advised  of  the  essential  par- 
ticulars of  the  charge  against  him,  and  the  court  must  be  able  to  decide 
whether  the  property  taken  was  such  as  was  the  subject  of  larceny. 
So,  too,  it  is  in  some  States  a  crime  for  two  or  more  persons  to  con- 
spire to  cheat  and  defraud  another  out  of  his  property ;  but  it  has 
been  held  that  an  indictment  for  such  an  offence  must  contain  alle- 
gations setting  forth  the  means  proposed  to  be  used  to  accomplish  the 
purpose. 

This,  because,  to  make  such  a  purpose  criminal,  the  conspiracy  must 
be  to  cheat  and  defraud  in  a  mode  made  criminal  by  statute ;  and  as 
all  cheating  and  defrauding  has  not  been  made  criminal,  it  is  necessary  for 
the  indictment  to  state  the  means  proposed,  in  order  that  the  court  may 
see  that  they  are  in  fact  illegal.  State  v.  Parker,  43  N.  H.  83  ;  State 
V.  Keach,  40  Vt.  118  ;  Alderman  v.  The  People,  4  Mich.  414  ;  State 
V.  Roberts,  34  Me.  32.  In  Maine,  it  is  an  offence  for  two  or  more  to 
cons[)ire  with  the  intent  unlawfully  and  wickedly  to  commit  any  crime 
punishable  by  Imprisonment  in  the  state  prison  (State  v.  Roberts)  ; 
but  we  think  it  will  hardly  be  claimed  that  an  indictment  would  be  good 
under  this  statute  which  charges  the  object  of  the  conspiracy  to  have 
been  "  unlawfully  and  wickedly  to  commit  each,  every,  all,  and  singu- 
lar the  crimes  punishable  by  imprisonment  in  the  State  prison."  All 
crimes  are  not  so  punishable.  Whether  a  particular  crime  be  such  a 
one  or  not,  is  a  question  of  law.  The  accused  has,  therefore,  the  right 
to  have  a  specification  of  the  charge  against  him  in  this  respect,  in  order 
tiiat  he  may  decide  whether  he  should  present  his  defence  b}'  motion 
to  quash,  demurrer,  or  plea ;  and  the  court,  that  it  may  determine 
whether  the  facts  will  sustain  the  indictment.  So  here,  the  crime  is 
made  to  consist  in  the  unlawful  combination  with  an  intent  to  prevent 
the  enjoyment  of  any  right  granted  or  secured  by  the  Constitution,  &c. 
All  rights  are  not  so  granted  or  secured.  Whether  one  is  so  or  not  is 
a  question  of  law,  to  be  decided  by  the  court,  not  the  prosecutor.  There- 
fore, the  indictment  should  state  the  particulars,  to  inform  the  court  as 
well  as  the  accused.  It  must  be  made  to  appear  —  that  is  to  say,  ap- 
pear from  the  indictment,  without  going  further  —  that  the  acts  charged 
will,  if  proved,  support  a  conviction  for  the  offence  alleged. 

But  it  is  needless  to  pursue  the  argument  further.  The  conclusion  is 
irresistible  that  these  counts  are  too  vague  and  general.    They  lack  the 


SECT.  I.]  COMMONWEiVLTH   V.   HARRINGTON.  31 

certaiuty  and  precision  required  by  the  established  rules  of  criaiiuul 
pleading.  It  follows  that  they  are  not  good  and  sullicient  in  law. 
They  are  so  defective  that  no  judgment  of  conviction  should  be  pro- 
nounced upon  them. 

The  order  of  the  Circuit  Court  arresting  the  judgment  upon  tht 

verdict   is,  therefore,  affirmed ;   and  the  cause  remanded,    with 

iiistructions  to  discharge  the  defendants. 


COMMONWEALTH  y.  HARRINGTON. 
Supreme  Judicial  Court  of  Massachusetts.     1880. 

[Reported  130  Mass.  35.] 

SouLE,  J.  The  only  question  in  this  case  is  whether  a  male  person 
who  is  convicted  on  a  complaint  for  drunkenness,  which  does  not  allege 
two  previous  convictions  of  a  like  olTence  within  a  year,  can  be  sen- 
tenced to  any  greater  penalty  than  the  payment  of  a  fine  of  one  dollar, 
which  is  the  penalty  imposed  by  the  St.  of  1880,  c.  221,  §  1. 

It  is  contended,  in  behalf  of  the  Commonwealth,  that  the  greater 
penalty  can  be  imposed  by  virtue  of  §  2  of  the  same  statute,  which  pro- 
vides that,  when  such  person  "  is  convicted  of  the  oflence  of  drunken- 
ness, and  it  is  proved  that  he  has  been  convicted  of  a  like  offence  twice 
before  within  the  next  preceding  twelve  months,  he  may  be  punished 
by  a  fine  not  exceeding  ten  dollars,  or  by  imprisonment  in  any  place 
now  provided  by  law  for  common  drunkards,  for  a  term  not  exceeding 
one  year ; "  and  provides  further  that  "  it  shall  not  be  necessary  iu 
complaints  under  the  act  to  allege  such  previous  convictions." 

The  language  of  this  section  is  broad  enough  to  cover  the  case  at 
bar,  and  the  rulings  of  the  judge  who  presided  in  the  Superior  Court 
when  the  motion  for  sentence  was  made  and  the  evidence  of  the  pre- 
vious convictions  of  the  defendant  was  produced,  were  in  strict  con- 
formity to  it. 

We  are  of  opinion,  however,  that  the  ruling  was  erroneous,  and  that 
the  evidence  ought  not  to  have  been  received.  It  is  provided  by  article 
12  of  the  Declaration  of  Rights  that  no  subject  shall  be  held  to  answer 
for  any  crimes  or  offence  until  the  same  is  fully  and  plainly,  substan- 
tially and  formally,  described  to  him.  When  a  statute  imposes  a  higher 
penalty  on  a  third  conviction,  it  makes  the  former  convictions  a  part  of 
the  description  and  character  of  the  offence  intended  to  be  punished. 
Tuttle  V.  Commonwealth,  2  Gray,  .505  ;  Commonwealth  v.  Holley.  3 
Gray,  458  ;  Garvey  v.  Commonwealth,  8  Gray,  382.  It  follows  that 
the  offence  which  is  punishable  with  the  higher  penalty  is  not  fully  and 
substantially  described  to  the  defendant,  if  the  complaint  f:\ils  to  set 
forth  the  former  convictions  which  are  essential  features  of  it.     That 


32  STATE   V.   MACK.  [CHAP.  III. 

clause  of  the  statute,  therefore,  which  provides  that  it  shall  not  be 
uecessary,  in  couii)laints  under  it,  to  allege  such  previous  convictions, 
is  inoperative  and  void,  as  being  contrary  to  the  provisions  of  the  Dec- 
laration of  Rights. 

The  result  is,  that  the  defendant  is  to  be  sentenced  for  a  single 
offence  of  drunkenness.^ 

J.  II.  Galligan,  for  the  defendant. 

G.  Mirston,  Attorney-General,  for  the  Commonwealth. 


STATE  V.  MACE. 
Supreme  Judicial  Court  of  Maine.    1884. 

[Reported  76  Maine,  64.] 

On  exceptions. 

Indictment  for  perjury.  The  verdict  was  guilty.  A  motion  in  arrest 
of  judgment  stated  as  one  reason:  "Because  said  indictment  does  not 
sufficiently  charge  an  offence  against  the  respondent  under  the  constitu- 
tion and  laws  of  the  State  of  Maine."  The  motion  was  overruled  and 
exct'ptions  were  taken  to  that  ruling. 

The  indictment  was  in  the  form  prescribed  by  R.  S.,  1871,  c.  122,  §  5. 

Walton,  J.  The  defendant  is  charged  with  having  committed  the 
crime  of  perjury  "by  falsely  swearing  to  material  matter  in  a  writing 
signed  by  him."  The  indictment  makes  no  mention  of  the  character  or 
purpose  of  the  writing.  Nor  does  it  state  what  the  matter  falsely  sworn 
to  was.  Nor  does  it  contain  any  averments  which  will  enable  the  court 
to  determine  that  the  oath  was  one  authorized  by  law.  The  question  is 
whether  such  an  indictment  can  be  sustained.  We  think  it  cannot.  It 
does  not  contain  sufficient  matter  to  enable  the  court  to  render  an 
intelligent  judgment.  The  recital  of  facts  is  not  sufficient  to  show  that 
a  crime  has  been  committed.  All  that  is  stated  may  be  true,  and  yet 
no  crime  have  been  committed.  The  character  of  the  writing  is  not 
stated,  nor  its  purpose  ;  nor  the  use  made,  or  intended  to  be  made,  of 
it.  For  aught  that  appears,  it  may  have  been  a  voluntary  affidavit  to 
the  wonderful  cures  of  a  quack  medicine.  Such  an  affidavit,  as  every 
lawyer  knows,  could  not  be  made  the  basis  of  a  conviction  for  perjury. 
In  the  language  of  our  statute  defining  perjury,  it  is  only  when  one  who 
is  required  to  tell  the  truth  on  oath  or  affirmation  lawfully  administered, 
wilfully  and  corruptly  swears  or  affirms  falsely  to  material  matter,  in  a 
proceeding  before  a  court,  tribunal,  or  officer  created  by  law,  that  he  is 
guilty  of  perjury.  R.  S.,  c.  122,  §  1.  The  oath  must  be  one  authorized 
or  required  by  law,  to  constitute  perjury.  Swearing  to  an  extra-judicial 
affidavit  is  not  perjury.     And  the  indictment  must  contain  enough  to 

1  See  St,  1881,  c.  276. 


SECT.  I.  j  STATE   V.   MACE.  33 

show  that  the  oath  was  one  which  the  law  autliorized  or  required,  or  it 
will  be  defective  and  clearly  insufficient,  even  after  verdict ;  lor  the 
verdict  will  affirm  uo  more  than  is  stated  in  the  indictment ;  and  if  the 
indictment  does  not  contain  enough  to  show  that  perjury  has  been  com- 
mitted, a  verdict  of  guilty  vvill  not  aid  it.  We  think  the  indictment  in 
this  case  is  fatally  defective  in  not  setting  out  either  the  tenor  or  the 
substance  of  the  writing  sworn  to  by  the  accused,  to  the  end  that  the 
court  might  see  whether  it  was  one  in  relation  to  which  perjury  could 
be  committed. 

Besides,  the  writing  referred  to  in  the  indictment  may  (and  it  would 
be  strange  if  it  did  not)  contain  more  than  one  statement  in  relation  to 
matters  of  fact.  The  grand  jury,  upon  the  evidence  before  them,  may 
have  come  to  the  conclusion  that  the  statement  in  relation  to  one  of 
these  matters  of  fact  was  false,  and  thereupon  voted  to  indict  the  de- 
fendant, while  the  traverse  jury,  upon  the  evidence  before  them,  may 
have  come  to  the  conclusion  that  the  statement  in  relation  to  that 
matter  was  true,  but  that  some  other  statement  contained  in  the  writing 
was  false,  and  thereupon  convicted  the  defendant  of  perjurj'in  swearing 
to  the  latter  statement ;  and  thus  the  defendant  would  be  convicted 
upon  a  matter  in  relation  to  which  he  had  never  been  indicted  b}-  the 
grand  jur}'.  Surely,  an  indictment  which  will  permit  of  such  a  result 
cannot  be  sustained. 

True,  the  form  followed  in  this  case  is  one  established  by  legislative 
authority'.  But  the  authority  of  the  legislature  in  such  cases  is  limited. 
Undoubtedly  the  legislature  may  abbreviate,  simplify,  and  in  many 
other  respects  modify  and  change  the  forms  of  indictments  ;  but  it  can- 
not make  valid  and  sufficient  an  indictment  in  which  the  accusation  is 
not  set  forth  with  sufficient  fulness  to  enable  the  accused  to  know  with 
reasonable  certainty  what  the  matter  of  fact  is  which  he  has  got  to 
meet,  and  enable  the  court  to  see,  without  going  out  of  the  record, 
that  a  crime  has  been  committed.  This  the  constitution  of  the  State 
forbids ;  and  to  that  instrument,  the  legislature  as  well  as  all  other 
tribunals,  must  conform.  The  authority  of  the  legislature  in  this  parti- 
cular, and  the  extent  to  which  it  ma}'  go  in  establishing  forms,  has  been 
judicially  determined  in  this  State,  and  the  arguments,  pro  and  con, 
need  not  be  repeated  here.  "We  refer  to  State  v.  Learned,  47  Maine, 
426. 

The  common  law  required  indictments  for  perjury'  to  be  drawn  with 
great  nicety  and  fulness,  more  so,  it  is  believed,  than  the  purposes  of 
justice  required ;  and  the  result  was  that  but  few  such  indictments 
proved  to  be  sufficient  when  subjected  to  a  close  and  searching  examin- 
ation. To  avoid  this  inconvenience,  the  legislature,  in  1865,  enacted 
two  forms,  which  it  declared  should  be  sufficient.  The  first  related  to 
perjury  committed  by  persons  testifying  orally  before  some  court  or  other 
tribunal,  and,  although  much  briefer  than  would  have  answered  by  the 
strict  rules  of  the  common  law,  it  was  held  sufficient  in  State  v.  Corson, 
59  Maine,  137.     The  second  related  to  perjurj'  committed  in  swearing 

3 


34 


STATE   V.   MCCARTY.  fCHAP.  III. 


to  some  writing  in  relation  to  which  an  oath  is  authorized  or  required 
by  law ;  and  the  sufficiency  of  this  latter  form  is  now  for  the  first  time 
before  the  law  court  for  consideration  ;  and,  for  the  reasons  already 
stated,  and  to  be  found  more  fully  stated  in  the  case  cited  (State  v. 
Learned.  47  Maine,  426),  we  are  forced  to  the  conclusion  that  it  is  not 
sufficient ;  that  the  legislature,  in  its  laudable  desire  to  prune  away  the 
great  prolixity  of  the  forms  required  by  the  common  law,  cut  too  deep, 
and  did  not  leave  enough  to  meet  the  requirements  of  the  constitution 
ut  the  State.  Exceptions  sustained.     Judgment  arrested. 


STATE  V.  McCARTY. 
Supreme  Court  of  Rhode  Island.     1891. 

[Reported  22  Atlantic  Reporter,  282.] 

Appeal  from  Court  of  Common  Pleas,  Providence  County. 

Indictment  of  Daniel  McCarty  for  burglary.  The  defendant  was 
convicted,  and  petitions  for  a  new  trial. 

Ziba  0.  Slocum^  Attorney-General,  for  the  State. 

S.  jS.  Stone  and  JEJ.  F.  Lovejoy,  for  defendant. 

Per  Curiam.  The  defendant  was  indicted  in  the  Court  of  Common 
Pleas  at  its  December  term,  1890,  for  breaking  and  entering,  in  the 
day-time,  the  house  of  one  Jeremiah  B.  Fuller,  in  Providence,  with  the 
intent  to  commit  larceny  therein.  At  the  trial  the  prosecution  called  as 
a  witness  the  owner  of  the  dwelling-house,  who  testified  that  his  name 
was  Jedediah  B.  Fuller.  When  the  case  for  the  prosecution  was  closed, 
the  defendant  moved  that  the  indictment  be  quashed  because  of  the 
variance  between  the  allegation  of  the  owner  of  the  house  and  the  proot 
submitted.  The  Court  overruled  the  motion  to  quash,  and  upon  motion 
of  the  attorney-general,  and  against  the  defendant's  objection,  permit- 
ted the  indictment  to  be  amended  by  striking  out  the  name  Jeremiah 
and  inserting  the  name  Jedediah.  The  defendant  excepted  to  the 
rulings  of  the  Court  of  Common  Pleas  in  the  matters  stated,  and  the 
jury  having  returned  a  verdict  of  guilty,  now  petitions  for  a  new  trial, 
upon  the  gi-ound,  among  others,  that  the  Court  of  Common  Pleas  had 
no  authority  to  permit  the  amendment.  We  think  that  a  new  trial 
should  be  granted.  The  amendment  to  the  indictment  being  in  a  matter 
of  substance,  could  only  properly  have  been  made  in  the  presence  of 
and  with  the  concurrence  of  the  grand  jur}'  (1  Bish.  Crim.  Proc.  §§  707- 
711  ;  Ex  parte  Bain,  121  U.  S.  1,  7  Sup.  Ct.  Rep.  781)  ;  or,  under  Pub. 
St.  R.  I.  c.  248,  §  4,  with  the  consent  of  the  accused. 

Petition  granted. 


SECT.  II.]  STATEMENT   OF  THE   CRIME.  35 

New  York  Code  of  Criminal  Procedure,  §§  284,  293.  The  indict- 
ment is  sutlicicnt,  if  it  can  be  understood  therefrom  : 

1.  That  it  is  entitled  in  a  court  having  authority  to  receive  it,  though 
the  name  of  the  court  be  not  accurately  stated  ; 

2.  That  it  was  found  by  a  grand  jury  of  the  count}',  or  if  in  a  city 
court,  of  the  city  in  which  the  court  was  held ; 

3.  That  the  defendant  is  named,  or  if  his  name  cannot  be  discovered, 
that  he  is  described  by  a  fictitious  name,  with  the  statement  that  it  has 
been  found  impossible  to  discover  his  real  name  ; 

4.  That  the  crime  was  committed  at  some  place  within  the  jurisdiction 
of  the  court,  except  where  .  .  .  the  act,  though  done  without  the  local 
jurisdiction  of  the  county,  is  triable  therein  ; 

5.  That  the  crime  was  committed  at  some  time  prior  to  the  finding  of 
the  indictment ; 

6.  That  tlie  act  or  omission  charged  as  the  crime  is  plainly  and  con- 
cisely set  forth ; 

7.  That  the  act  or  omission  charged  as  the  crime  is  stated  with  such 
a  degree  of  certainty,  as  to  enable  the  court  to  pronounce  judgment, 
upon  a  conviction,  according  to  the  right  of  the  case. 

Upon  the  trial  of  an  indictment,  when  a  variance  between  the  allega- 
tion therein  and  the  proof,  in  respect  to  time,  or  in  the  name  or  descrip- 
tion of  an}^  place,  person,  or  thing,  shall  appear,  the  court  may,  in  its 
judgment,  if  the  defendant  cannot  be  thereb}'  prejudiced  in  his  defence 
on  the  merits,  direct  the  indictment  to  be  amended,  according  to  the 
proof,  on  such  terms  as  to  the  postponement  of  the  trial,  to  be  had 
before  the  same  or  another  jury,  as  the  court  may  deem  reasonable. 


SECTION  II. 

Statement  of  the  Crime. 

2  Hawldns,  Pleas  of  the  Crown,  ch.  25,  Sects.  57,  59. 

The  special  manner  of  the  whole  fact  ought  to  be  set  forth  with  such 
certaint}',  that  it  may  judicially  appear  to  the  court  that  the  indictors 
have  not  gone  upon  insufficient  premises.  And  upon  this  ground  it 
seems  to  be  agreed  that  an  indictment  finding  that  a  person  hath  feloni- 
ously broken  prison,  without  shewing  the  cause  of  his  imprisonment, 
&c.,  by  which  it  may  appear  that  it  was  of  such  a  nature  that  the  break- 
ing might  amount  to  felon}',  is  insufficient.  .  .  .  Also  it  seems  that 
an  indictment  of  perjury,  not  shewing  in  what  manner  and  in  what 
court  the  false  oath  was  taken,  is  insufficient,  because  for  what  appears 
it  miglit  have  been  extrajudicial,  &c. 

Regularly  every  indictment  must  either  charge  a  man  with  some  par- 
ticular offence,  or  else  with  several  of  such  offences,  particularly  and 


36 


EEX   V.   LEDGIXHAM.  [CHAP.  III. 


certaiuly  expressed,  and  not  with  being  an  offender  in  general.  For 
no  one  can  well  know  what  defence  to  make  to  a  charge  so  uncertain, 
or  to  plead  it  either  in  bar  or  abatement  of  a  subsequent  prosecution  ; 
neither  can  it  appear  that  the  facts  given  in  evidence  against  a  defen- 
dant on  such  a  general  accusation,  are  the  same  of  which  the  indictors 
have  accused  him ;  neither  can  it  judicially  appear  to  the  court,  what 
punishment  is  proper  for  an  offence  so  loosely  expressed. 

2  RoUe's  Abridgement,  79.  An  indictment  of  a  man  that  he  is  a 
common  forestaller,  without  alleging  anything  certain,  is  not  good,  be- 
cause it  is  too  general.  29  Ass.  45,  adjudged.  See  3  E.  2,  actio7i  sur  le 
statute  26.  So  an  indictment  that  he  is  a  common  thief,  without  more, 
is  not  good.  29  Ass.  45  ;  22  Ass.  73,  3  E.  2,  action  sur  le  statute  26. 
So  an  indictment  for  champerty  is  not  good  without  more.  29  Ass.  45. 
So  an  indictment  for  conspiracy  is  not  good  without  more.  29  Ass.  45. 
So  an  indictment  for  confederacy  is  not  good  without  more.  Contra, 
29  Ass.  45,  but  quaere.  An  indictment  of  a  man  for  that  he  is  a  com- 
mon misfeasor  is  not  good,  because  it  is  too  general.  22  Ass.  73.  So 
an  indictment  that  he  is  communis  pads  I>omini  Regis  perturbator,  ac 
diversas  lites  c&  dlscordias  tarn  inter  vicinos  suos  quam  inter  diversos 
Ugeos  &  subditos  domini  Regis  apud  W.  in  comitatu  predicto  injuste 
excitavit  moverit  d:  procuravit,  in  magnum  dispendium  <fc  perturba- 
tionem  vicinorum  suorum  lyredictorum  <f;  aliorum  subditorum  domini 
Regis  in  comitatu  predicto  is  not  good,  because  too  general.  JM.  6  Car. 
B.  R.  per  Curiam.    Indictment  quashed  in  Periam's  case. 


REX  V.   LEDGINHAM. 
King's  Bench.     1669. 

[Reported  1  Mod.  288.] 

Information  setting  forth  that  he  was  lord  of  the  manor  of  Ottery 
St.  Mary,  jn  the  county  of  Devon,  wherein  there  were  many  copyholders 
and  freeholders,  and  that  he  was  a  man  of  an  unquiet  mind,  and  did 
make  unreasonable  distresses  upon  several  of  his  tenants,  and  so  was 
communis  oppressor  et  perturbator  piacis. 

It  was  proved  at  the  trial  that  he  had  distrained  four  oxen  for  three- 
pence, and  six  cows  for  eight-pence,  being  amercements  for  not  doing 
suits  of  court,  and  that  he  was  communis  oppressor  et  perturbator 
pads. 

The  defendant  was  found  guilty.  But  it  was  moved  in  arrest  of 
judgment  that  the  information  is  ill  laid : 

First,  It  is  said  he  disquieted  his  tenants,  and  vexed  them  with  un- 
reasonable distresses.  It  is  true,  that  is  a  fault,  but  not  a  fault  punish- 
able in  this  way  ;  for  by  the  statute  of  Marlebridge,  c.  4.  2.  Inst.  106,  7, 


SECT.  II.]  COMMONWEALTH   V.   NEWBURYPORT   BRIDGE.  37 

he  shall  be  punished  b}-  grievous  amercements  ;  and  wlicre  the  statute 
takes  care  for  due  punishment,  that  method  must  be  observed. 

Secondl}',  As  to  the  matter  itself,  the}'  do  not  set  forth  how  much  lie 
did  take,  nor  from  whom  ;  so  that  the  Court  caiuiot  judge  whether  it  is 
unreasonable  or  no,  nor  could  we  take  issue  uj^on   them. 

Thirdly,  As  to  the  communis  ojyjyressor  et  2)erturbator  pads,  thoy 
are  so  general,  that  no  indictment  will  lie  upon  them  ;  as  in  Cornwall's 
case,  Jones,  302,  which  indeed  goeth  to  both  the  last  points. 

TwisDEN,  J.  Com,munis  oppressor,  Sc,  is  not  good  :  such  general 
words  will  never  make  good  an  indictment,  save  only  in  that  known 
case  of  a  barrator;  for  "  communis  harrectator  "  is  a  terra  which  the 
law  takes  notice  of,  and  understands ;  it  is  as  much,  as  I  have  heard 
judges  sa}',  as  "  a  common  knave,"  which  contains  all  knavery.  For 
the  other  point,  an  information  will  not  lie  for  taking  outrageous  dis- 
tresses. It  is  a  private  thing,  for  the  which  the  statute  gives  a  remedy, 
viz.  by  an  action  upon  the  statute  tarn  quam. 

Per  Curiam.    It  is  naught.  —  Adjournatur. 


COMMONWEALTH  v.   NEWBURYPORT   BRIDGE. 
Supreme  Judicial  Court  of  Massachusetts.     1829. 

[Reported  9  Pick.  142.] 

The  indictment  in  this  case  recites  that  by  a  statute  passed  March 
4,  1826  {St.  1825,  c.  164)  James  Prince  and  others  were  incorporated 
by  the  name  of  The  Proprietors  of  the  Newburyport  Bridge,  and  that 
b}'  the  second  section  it  is  enacted  that  there  shall  be  a  draw  not  less 
than  thirt^'-eight  feet  wide,  and  a  suitable  pier  on  each  side  of  the 
bridge  at  the  draw.  The  indictment  then  alleges  that  the  defendants, 
on  and  from  the  1st  of  January,  1828,  to  the  taking  of  this  inquisition, 
"  have  neglected  and  still  do  neglect  to  provide  a  suitable  pier  on  each 
side  of  the  said  bridge  at  the  said  draw,  according  to  the  requirement 
of  the  act  aforesaid,  but  have  left  the  said  bridge  altogether  destitute  of 
an\'  pier  at  the  said  draw,  by  means  whereof  all  vessels  and  river  craft, 
having  masts  higher  than  will  readily  pass  under  the  said  draw,  are  ob- 
structed, hindered,  and  altogether  prevented  from  passing  said  bridge, 
to  the  common  nuisance,"  «fec. 

At  the  trial,  before  Putnam,  J.,  the  defendants  objected  that  the  in- 
dictment was  found  too  soon,  inasmuch  as  the  three  years  allowed 
them  by  the  act,  for  completing  the  bridge,  had  not  expired  when  the 
indictment  was  found.  They  admitted  that  thej'  had  taken  toll  of 
passengers  for  upward  of  a  year.     The  objection  was  overruled. 

A  verdict  against  the  defendants  was  taken,  subject  to  the  opinion 
of  the  whole  court. 


38  COMMONWEALTH  V.   BEAN.  [CHAP.  III. 

The  defendants  also  moved  in  arrest  of  judgment,  because  it  is  not 
alleged  in  the  indictment  that  any  bridge  had  been  built 

Ckoate  and  Cushiny  for  the  defendants. 

Minot,  Count}'  Attorney,  for  the  commonwealth. 

Pkk  Cukiam.  The  answer  to  the  first  objection  is  that  the  defen- 
dants completed  the  bridge  and  took  toll ;  and  if  so,  we  think  they 
were  bound  to  provide  the  means  prescribed  b}'  the  statute,  to  enable 
vessels  to  pass  with  convenience  through  the  draw. 

But  we  think  the  objection  that  the  indictment  does  not  allege  that 
any  bridge  has  been  built  is  fatal.  It  may  indeed  be  inferred  by  any 
common  reader  that  there  was  a  bridge ;  but  no  lawyer,  considering 
that  inferences  are  not  to  be  made  in  criminal  cases,  would  sa}'  it 
appears  that  a  bridge  had  been  built.  There  ought  to  have  been  an 
express  allegation  to  that  effect.  Indictment  quashed. 


COMMONWEALTH  v.  BEAN. 
Supreme  Judicial  Court  of  Massachusetts.     1853. 

[Reported  11  CusA.  414.] 

The  defendant  was  indicted  upon  the  Rev.  Sts.  c.  126,  §  42,  which 
enacts  that  cveiy  person  who  shall  "  maliciouslj'  or  wantonly  break  the 
glass  or  any  part  of  it,  in  SLuy  building  not  his  own,  or  shall  maliciously 
break  down,  injure,  mar,  or  deface  any  fence  belonging  to  or  inclosing 
lands  not  his  own,  or  shall  maliciously-  throw  down  or  open  any  gate, 
bars,  or  fence,  and  leave  the  same  down  or  open,  or  shall  maliciously 
and  injurioush'  sever  from  the  freehold  of  another  any  produce  thereof, 
or  anything  attached  thereto,  shall  be  punished  by  imprisonment  in  the 
county  jail,  not  more  than  one  year,  or  by  fine  not  exceeding  one  hun- 
dred dollars."  Tiie  indictment  averred  that  the  defendant,  "  with  force 
and  arms,  wilfully,  maliciously,  wantonly,  and  without  cause,  did  break 
and  destroy  the  glass,  to  wit,  two  panes  of  glass  of  the  value  of  ten 
cents  each,  in  a  certain  building  there  situate,  not  his  own,  but  which 
building  then  and  there  belonged  to  and  was  the  property'  of  one  Dorcas 
B.  Prentice,  &c." 

After  a  verdict  of  guilty,  the  defendant  moved  in  arrest  of  judgment, 
because  the  indictment  did  not  allege  that  the  glass  broken  was  a  part 
of  the  building,  but  onl}'  that  it  was  in  a  building  not  his  own. 

J3.  F.  Butler,  for  the  defendant. 

R.  Choate,  Attorne3'-General,  for  the  Commonwealth. 

1\Ietcalf,  J.  It  is  admitted  by  the  counsel  for  the  Commonwealth, 
that  the  section  of  the  statute,  on  which  this  indictment  is  framed,  was 
intended  to  punish  the  malicious  and  wanton  breaking  of  glass  which 


SECT.  II.]  STATE  V.   EUSSELL.  31) 

is  part  of  a  buikling.  And  it  is  argued  b}-  him,  that  tlio  words  used  in 
the  indictment,  being  the  same  as  those  in  tlie  statute,  must  be  held  to 
have  the  same  meaning.  But  this  does  not  necessarily  follow.  The 
meaning  of  words  in  a  statute  may  be,  and  not  unfrequcnlly  must  be, 
ascertained  by  examination  of  the  context.  In  the  present  case,  it  is 
from  the  context  that  the  words  "glass  in  a  building"  are  understood, 
on  all  hands,  to  mean  glass  which  is  part  of  a  building.  But  the  court 
in  ascertaining  the  offence  with  which  the  defendant  is  charged,  cannot 
look  beyond  the  words  of  the  indictment  itself  If  those  words  do  not 
sullicieutly  charge  the  offence  which  the  statute  was  meant  to  punish, 
the  indictment  is  fatally  defective.  2  Hawk.  c.  25,  §  111;  Common- 
wealth V.  Slack,  19  Pick.  304 ;  Commonwealth  v.  Clifford,  8  Cush.  215  ; 
Commonwealth  v.  Stout,  7  B.  Monr.  247.  We  are,  therefore,  of  opin- 
ion that  the  mdictment  in  this  case  will  not  sustain  a  judgment  against 
the  defendant.  For  aught  that  the  indictment  shows,  the  glass,  which 
he  is  charged  with  having  maliciously  and  wantonly  broken,  may  have 
been  panes  of  glass  which  were  not  a  part  of  any  building. 

Judgment  arrested. 


STATE  V.  RUSSELL. 
Supreme  Court  of  Rhode  Island.    1884. 

[Reported  U  R  I.  506.] 

Exceptions  to  the  Court  of  Common  Pleas. 

May  22,  1884.  Durfee,  C.  J.  The  exceptions  raise  only  one  ques- 
tion, namely:  Is  a  complaint  under  Pub.  Stat.  R.  I.  cap.  244,  §  22, 
against  a  woman  for  being  a  common  night-walker  sufficient  if  it  simply 
charges  her  with  being  a  common  night-walker  without  alleging  par- 
ticular acts?  It  is  well  settled  that  for  the  offence  of  being  a  common 
scold  or  a  common  barrator  such  a  charge  is  sufficient.  The  reason  is, 
the  offence  does  not  consist  of  particular  acts  but  of  an  habitual  prac- 
tice evidenced  by  a  series  of  acts.  It  may  be  argued  that  if  a  vicious 
practice  constitutes  the  offence,  then  the  practice  ought  to  be  alleged 
descriptively  in  the  complaint  or  indictment.  The  answer  is,  the  words 
"common  scold"  and  "  common  barrator"  are  words  having  a  techni- 
cal meaning  in  the  law,  and  that  they  import  ex  vi  terminortim  all  that 
would  be  expressed  if  the  practice  were  so  alleged.  In  State  t».  Dowers, 
45  N.  H.  543,  the  same  reasoning  was  held  to  be  applicable  where  the 
offence  is  the  offence  of  being  a  common  night-walker,  and  in  that  case 
it  was  decided  that  it  was  enough  to  charge  the  offender  with  being  a 
common  night-walker.  We  think  the  decision  was  correct.  The  words 
"  a  common  night-walker"  are  words  having  a  technical  meaning  in  the 
law,  and  it  would  therefore  be  superfluous  to  spread  their  definition  on 


40  REX  V.  .  [chap.  Ill 

the  record.  If,  for  the  purposes  of  defence,  the  accused  needs  more 
defiuite  information  than  the  record  affords,  she  should  ask  for  a  bill 
of  particulars,  which,  of  course,  in  so  far  as  the  offence  is  capable  of 
being  particularized,  ought  to  be  and  would  be  supplied.  Wharton's 
Crim.  Plead.  &  Prac.  §  155;  Commonwealth  v.  Davis,  11  Pick.  432; 
Commonwealth  v.  Pray,  13  Pick.  359  ;  Commonwealth  v.  Wood,  4 
Grav,  11.  Exceptions  overruled, 

Stephen  A.  Cooke^  Jun.,  for  plaintiff. 

John  M.  Brenjian.  for  defendant. 


SECTION  III. 

Particular  Allegations. 

(a)  Name. 


REX  V. 


Old  Bailey.    1822. 

[Reported  Russ.  ^-  Ry.  489.] 

The  prisoner  was  indicted  at  the  Old  Bailey  sessions  in  January, 
1822,  by  the  description  of  a  person  whose  name  was  to  the  jurors  un- 
known. The  offence  with  which  he  was  charged  was  that  of  publishing 
a  blasphemous  and  seditious  libel. 

It  appeared  that,  when  apprehended,  he  refused  to  declare  his  name 
before  the  magistrate,  and  the  prosecutors,  not  being  able  to  discover 
his  name,  indicted  him  as  a  man  whose  name  was  unknown  to  the 
jurors.  When  called  to  the  bar,  the  indictment  was  read  to  him,  and  he 
then  refused  to  plead,  and  was  remanded.  At  the  following  sessions,  in 
the  month  of  February,  the  prisoner  was  again  called  to  the  bar  and  by 
the  advice  of  his  counsel  put  in  a  demurrer  in  writing  to  the  indictment. 
The  prosecutors  had  time  given  them  until  the  next  morning  to  reply  ; 
but  before  they  could  do  so  the  prisoner,  b}'  his  counsel,  moved  the  court 
to  be  permitted  to  withdraw  his  demurrer,  which  was  granted  :  and  being 
then  called  on  for  his  plea,  he  pleaded  not  guilty ;  and  being  told  that 
he  must  plead  by  some  name,  he  refused  to  give  in  an}'  name.  The 
learned  Recorder  was  of  opinion  that  his  plea  could  not  be  received 
without  a  name,  and  the  prisoner  was  again  remanded  for  want  of  a 
plea.  At  the  following  sessions  he  was  again  called  on  to  plead,  and 
again  pleaded  not  guilt}' ;  but  refused  to  put  in  that  plea  by  an}-  name. 
He  was  agam  told  that  the  court  could  not  receive  his  plea  unless  he 
would  plead  by  some  name ;  and,  as  he  persevered  in  his  refusal,  he 
was  again  remanded. 


SECT.  III.]  REGINA  V.    WILSON.  41 

As  this  case  appeared  to  be  without  precedent,  and  might  materially 
affect  tlie  administration  of  justice,  the  learned  Recorder  requested  the 
opinion  of  the  Judges  upon  the  following  points :  first,  whether  the 
piisoner  could  be  admitted  to  put  a  plea  on  the  record  without  a  name  ; 
secondly,  whether  such  a  plea  should  be  treated  as  a  mere  nullit}',  and 
the  prisoner  be  remanded  from  time  to  time,  as  in  contempt  for  not 
pleading ;  thirdly,  whether  the  refusal  to  plead  by  name  would  entitle 
the  court  to  enter  up  judgment  by  default ;  and,  fourthly,  whether, 
in  case  the  prisoner  should  ultimately  plead  by  name,  the  court  could 
proceed  to  try  him  upon  this  indictment  or  should  quash  the  indictment 
as  defective,  and  direct  a  fresh  indictment  to  be  preferred  against  him 
b\'  the  name  by  which  he  might  plead. 

In  Trinity  term,  1822,  this  case  being  presented  for  consideration, 
some  of  the  learned  Judges,  before  it  was  discussed,  suggested  that  the 
prisoner  might  be  indicted  as  a  person  whose  name  was  unknown,  but 
who  was  personally  brought  before  the  jurors  by  the  keeper  of  the 
prison.  An  indictment  was  preferred  accordingly,  and  the  prisoner 
was  convicted. 


REGINA  V.  JAMES. 
Central  Criminal  Court.     1847. 

[Reported  2   Cox  C.  C.  227.] 

The  indictment  charged  the  prisoner  with  assaulting  and  stealing 
from  a  female  "  two  rings,  &c.,  the  property  of  Jules  Henry  Steiner." 

The  female  was  the  wife  of  the  owner  of  the  property,  and  stated 
that,  to  the  best  of  her  knowledge,  her  husband's  name  was  Henry 
Jules  Steiner,  and  not  Jules  Henry  Steiner. 

Pollock,  C.  B.,  held  the  misnomer  fatal;  and  the  prisoner  was 
acquitted. 


REGINA  V.  WILSON. 
Crown  Case  Reserved.     1848. 

[Reported  2  Cox  C.  C.  426.] 

The  prisoner  was  convicted  at  Liverpool  during  the  last  Winter  As- 
sizes, before  Coltman,  J.,  who  respited  judgment  and  reserved  tiie 
following  case :  — 

The  prisoner  was  tried  before  me  at  the  last  Special  Commission  for 
Liverpool. 

The  indictment  in  the  first  count  charged  that  on,  «&c.,  at  &c.,  the 
said  E.  Wilson  did  forge  a  certain  warrant  and  order  for  the  payment 


42  KEGINA   V.   DAVIS,  [CHAP.  Ill, 

of  money,  which  said  warrant  and  order  for  paj-ment  of  mone}-  is  as 
follows  ;  that  is  to  say,  — 

"  Xo.  Liverpool,  December  8,  1847. 

"  To  the  cashiers  of  the  Liverpool  Borough  Bank  : 

'I  l^ay or  bearer  two  hundred  and  fift}'  pounds. 

"  £250  05.  Od.  John  McNicole  &  Co." 

with  intent  to  defraud  one  John  McNicole.^ 

It  was  objected,  on  behalf  of  the  prisoner,  that  the  signature  of  the 
prosecutor  to  the  cheque,  as  set  out  in  the  indictment,  being  John 
McNicole  and  Co.,  and  the  signature  to  the  cheque  proved.  John  Mc- 
Xicoll,  there  was  a  variance.  I,  however,  overruled  the  objection, 
being  of  opinion  that  the  substituting  of  the  letter  "  e"  for  "  1 "  did  not 
make  it  a  different  name.  See  Williams  v.  Ogle,  2  Str.  889  ;  Aleberry 
V.  Walby,  1  Str.  231 ;  Reg.  v.  Drake,  2  Salk.  660 ;  Rex  v.  Beach,  Cowp. 
230 :  Rex  v.  Hart,  1  Leach,  145. 

The  jury  found  the  prisoner  guilty ;  but,  entertaining  some  doubt 
whether  the  conviction  was  right,  I  forbore  to  pass  sentence  on  him, 
and  request  the  opinion  of  the  judges  thereon. 

W.  -5.  Brett,  for  the  prisoner.  — Upon  the  point  of  variance  the  law 
is  clear ;  and  the  only  question  is,  whether  the  court  can  sa}'  that  the 
two  names  are  so  identical  in  sound  that  no  person  could  be  misled. 

Cojiviction  affirmed. 


REGINA  V.  DAVIS. 
Crcwn  Case  Reserved.     1851. 

[Reported  5  Cox  C.  C.  237.] 

This  case  was  reserved  b}'  the  Dorsetshire  Sessions. 

The  prisoner  was  indicted  for  stealing  the  goods  of  Darius  Christo- 
pher. The  evidence  proved  the  prosecutor's  name  to  be  Tryus 
Christopher.  The  chairman  ruled  that,  in  Dorsetshire,  Darius  and 
Tryus  were  idem  sonantia,  but  requested  the  opinion  of  the  judges 
upon  the  correctness  of  that  ruling.  When  this  case  came  on  to  be 
heard,  on  the  8th  February,  before  Jenus,  C.  J.,  Alderson,  B.,  Williams, 
J.,  Piatt,  B.,  and  Martin,  B.,^  the  court  intimated  that  it  was  a  question 

'  Part  of  the  case,  not  involving  the  question  of  misnomer,  is  omitted. 

2  On  that  occasion  Ffooks  appeared  for  the  prisoner,  and  the  following  cases  were 
referred  to :  Williams  v.  Ogle,  2  Stra.  889,  where  Segrave  and  Seagrave  were  held 
idem  sonantia ;  Keg.  v.  8hakspeare,  10  East,  83,  where  the  contrar}-  was  held  as  to  the 
words  Shakespeare  and  Shakepear;  R.  v.  Wilson,  2  Car.  &  K.  527,  where  McNicholl 
iras  proved  and  McNicole  averred,  and  held  no  variance ;  R.  v.  James,  2  Cox  C.  C. 
227,  where  the  prosecutor  wa.s  erroneously  described  as  J.  H.  S.  instead  of  H.  J.  S. 
and  the  variance  was  held  fatal ;  R.  i'.  Lippiatt,  1  Cox  C.  C.  .56,  where  the  prosecutrix 
was  described  Sarah  B.  instead  of  Sarah  Anne  B.,  her  baptismal  name ;  and  the 
prisoner  was  acquitted  on  the  ground  of  the  misnomer,  though  it  was  proved  that  the 


SECT.  III.]  COMMONWEALTH  V.   PERKINa  43 

for  the  jur}',  and  directed  the  case  to  be  sent  back,  in  order  that  it 
might  be  stated  whether  the  question  had  been  left  to  the  jmy.  The 
case  was  now  returned,  with  a  statement  that  the  question  of  variance 
was  not  left  to  the  jury, 

LoKD  Campbell,  C.  J.  —  This  conviction  must  be  reversed.  If  it  is 
put  as  a  matter  of  law,  it  is  quite  impossible  for  this  court  to  say  that 
the  two  words  are  idem  sonantia.  The  objection  is  said  to  have  been 
taken  in  arrest  of  judgment ;  but  I  never  heard  of  such  a  ground  for 
arresting  the  judgment  since  the  great  case  of  Stradley  v.  Styles. 

Coleridge,  J.  —  No  doubt  a  Dorsetshire  jury  would  have  thought 
the  words  idem  sonantia.  Conviction  reversed. 


COMMONWEALTH  v.  PEHKINS. 
Supreme  Judicial  Court,  Massachusetts.     1823. 

[Reported  1  Pick.  388.] 

The  defendant  being  indicted  by  the  name  of  Thomas  Perkins,  junior, 
for  a  nuisance  under  the  statute  against  gaming,  pleaded  in  abatement, 
at  April  term,  1822,  of  the  Municipal  Court,  that  his  name  was  Thomas 
Hopkins  Perkins.  The  county  attorney  demurred  generally,  and  there 
was  a  judgment  of  respondeas  ouster,  a  trial  upon  the  general  issue,  and 
an  appeal  to  this  Court. 

Per  Curiam.  It  is  said  on  behalf  of  the  Commonwealth  ihvA,  junior 
is  no  part  of  the  name.  This  is  true,  but  another  objection  to  the  in- 
dictment is,  that  the  defendant  is  called  Thomas  instead  of  Thomas 
Hopkins.  In  b  D.  &  E.  195,  a  person  was  sued  by  the  Christian  name 
James  Richard  instead  of  Hichard  James,  and  it  was  held  a  misnomer 
on  account  of  the  transposition.  The  indictment  must  give  the  defen- 
dant his  right  Christian  name. 

Defendant  discharged. 

prosecutrix  was  called  in  her  own  family  Sarah  ;  R.  v.  Bridget  Smith,  ih.  248,  where 
the  prosecutor  was  described  as  Patrick  Henry  S.,  which  was  his  baptismal  name ;  but 
he  had  always  been  called  Patrick  or  Heury,  was  confirmed  by  the  name  of  Henry, 
and  afterwards  generally  called  so.  Held,  that  he  ought  to  have  been  so  described  in 
the  indictment. 


44  llEX  V.   NAPPEE.  [chap.  UL 

SECTION   III.  {continued), 
(b)  Time  and  Place. 

SIR  HENRY  VANE'S    CASE. 
King's  Bench.     1663. 

[Reported  Kelyng  14.] 

Memorandum,  That  in  Trinity  Term,  14  Car.  2,  Sir  Hen.  Vane  was 
indicted  at  the  King's  Bench  for  compassing  the  death  of  King  Charles 
the  2d,  and  intending  to  change  the  kingly  government  of  this  nation  ; 
and  the  overt  acts  which  were  laid  were,  that  he  with  divers  other 
unknown  persons  did  meet  and  consult  of  the  means  to  destro}'  the 
king  and  government ;  and  did  take  upon  him  the  government  of  the 
forces  of  this  nation  b}'  sea  and  land,  and  appointed  colonels,  captains, 
and  officers,  and  the  sooner  to  effect  his  wicked  design,  did  actually 
in  the  County  of  Middlesex  raise  war.^ 

Although  the  treason  of  compassing  the  king's  death  was  laid  in  the 
indictment  to  be  the  30th  of  Ma}',  11  Car.  2,  yet  upon  the  evidence  it 
appeared,  that  Sir  Hen.  Vane,  the  very  day  the  late  king  was  murdered, 
did  sit  in  Council  for  the  ordering  of  the  forces  of  the  nation  against  the 
king  that  now  is,  and  so  continued  on  all  along  until  a  little  before  the 
king's  coming  in.  It  was  resolved  that  the  day  laid  in  the  indictment 
is  not  material,  and  the  jurj'  are  not  bound  to  find  him  guilty  that  da}', 
but  may  find  the  treason  to  be  as  it  was  in  truth  either  before  or  after 
the  time  laid  in  the  indictment ;  as  it  is  resolved  in  Syer's  case,  Co.  PI. 
Coron.  230.  And  accordingly  in  this  case  the  jur}'  found  Sir  H.  Vane 
guilty  of  the  treason  in  the  indictment  the  30th  of  Januar}-,  1  Car.  2, 
which  was  from  the  ver}'  day  the  late  king  was  murdered,  and  so  all  his 
forfeitures  relate  to  that  time  to  avoid  all  conveyances  and  settlements 
made  by  him. 


REX  V.   NAPPER. 

Crown  Case  Reserved.     1824. 

[Reported  1  Moo.  Cr.  C.  44.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Batlet,  at 
the  Summer  Assizes  for  Lancaster  in  the  year  1824,  of  stealing  in  a 
dwelling-house ;  but  a  doubt  having  occurred  whether  the  situation  of 
the  house  was  sufficiently  described  in  the  indictment,  the  learned  Judgo 
submitted  that  point  to  the  consideration  of  the  Judges. 

1  Part  of  the  case,  not  involving  the  allegation  of  time,  is  omitted. 


SECT.  III.]  STATE  V.   SEXTON.  45 

The  indictment  stated  that  tlic  prisoner,  on  the  Cth  August,  5  Geo. 
4,  at  Liverpool,  in  the  county  aforesaid,  one  coat,  value  forty  shillings^ 
&c.,  of  the  goods  and  chattels  of  Daniel  Jacksoti,  in  the  dwelling- 
house  of  William  T'honias,  then  and  there  being,  then  and  there  did 
feloniously  steal,   «fec. 

The  doubt  was,  whether  it  should  not  have  been  stated  "in  the 
dwelling-house  of  IVilliam  Thomas^  there  situate."  Indictments  for 
burglar}'  and  arson  generally  contain  such  a  statement,  and  so  do  indict- 
ments for  breaking  a  house  in  the  daytime,  or  demolishing  a  house. 

In  Michaelmas  Term  1824,  the  Judges  met  and  considered  this  case, 
and  held  that  the  indictment  showed  sufficiently  that  the  house  was 
situate  at  Liverpool,  and  that  the  conviction  was  therefore  proper. 


STATE  V.   SEXTON. 
Supreme  Court  of  North  Carolina.     1824. 

[Reported^  Hawks,  184.] 

Indictment  for  an  assault  with  intent  to  kill,  tried  before  Paxton,  J. 
The  bill  was  found  in  March  Term,  1824,  and  charged  the  offence  to 
have  been  committed  on  the  19th  day  of  August,  1824.  The  defendant 
was  put  upon  his  trial  at  the  same  Term  in  which  the  bill  was  found, 
and  after  the  jury  was  impanelled,  the  prosecuting  officer  moved  the 
court  to  amend  the  indictment  as  to  the  day  on  which  the  offence  is 
charged  to  have  been  committed.  The  court  overruled  the  motion, 
and  the  jury  found  the  defendant  guilty,  in  manner  and  form  as  charged 
in  the  bill  of  indictment,  and  judgment  was  arrested,  because  the  offence 
was  laid  to  have  been  committed  on  a  day  3'et  to  come. 

Per  Curiam.  It  is  a  familiar  rule  that  the  indictment  should  state 
that  the  defendant  committed  the  offence  on  a  specific  da}'  and  3'ear,  but 
it  is  unnecessary  to  prove,  in  any  case,  the  precise  day  or  year,  except 
where  the  time  enters  into  the  nature  of  the  offence.  But  if  the  indict- 
ment lay  the  offence  to  have  been  committed  on  an  impossible  day, 
or  on  a  future  daj-,  the  objection  is  as  fatal  as  if  no  time  at  all  had  been 
inserted.  Nor  are  indictments  within  the  operation  of  the  Statutes  of 
Jeofails,  and  cannot,  therefore,  be  amended ;  being  the  finding  of  a 
jury  upon  oath,  the  court  cannot  amend  without  the  concurrence  of 
the  Grand  Jury  by  whom  the  bill  is  found.  These  rules  are  too  plain 
to  require  authority,  and  shew  that  the  judgment  of  the  court  was 
right,  and  must  be  affirmed. 


46  COMMONWEALTH   V.   TOLLIVER.  [CHAP.  UI. 


STATE  V.   SMITH. 
Delaware.     185-. 

[Reported  5  Harr.  490.] 

The  defendant  was  indicted  and  convicted  for  disturbing  a  religious 
Society  of  Metliodists  in  Mispillion  hundred,  assembled  for  the  purpose 
of  religious  worship. 

Mr.  Comegys  moved  in  arrest  of  judgment  that  the  indictment  was 
not  sufficiently  certain  as  to  place.  Religious  meetings  of  the  Methodists 
were  held  at  other  places  in  Mispillion  hundred  than  at  the  private 
house  where  this  meeting  was  held,  and  this  indictment  did  not  certainly 
inform  the  defendant  what  meeting  he  was  charged  with  disturbing. 
{Buss.   Cr.,  837,  n.) 

The  Court  denied  the  motion,  saying:  The  indictment  is  in  the 
usual  form,  and  is  framed  under  the  act  of  assembly.  Even  without  an 
act  of  assembly,  this  would  be  an  indictable  offence,  as  the  Christian 
religion  is  protected  by  the  common  law.  Unless  time  or  place  enter 
into  the  crime  itself,  it  is  not  material  to  state  or  prove  it.  The  locality 
of  a  road  enters  into  the  charge  of  obstructing  it.  But  as  to  disturbing 
a  religious  society,  the  place  is  unimportant,  if  within  the  county.  It 
is  not  necessary  that  the  place  should  be  specifically  laid  to  guard 
against  another  trial,  for  the  identity  of  the  two  cases  is  to  be  tried  by 
the  jury,  on  a  plea  of  former  acquittal  or  conviction. 


COMMONWEALTH  v.  TOLLIVER. 
Supreme  Judicial  Court,  Massachusetts.     1857. 

[Reported  8  Gray,  386.] 

Indictment  for  an  assault  upon  John  Woods,  at  Boston.  At  the 
trial  in  the  Municipal  Court,  Abbott,  J.  allowed  the  county  attorney  to 
introduce  evidence  to  prove  an  assault  upon  Woods  in  Chelsea,  notwith- 
standing the  defendant's  objection  that  this  was  a  variance.  The  defen- 
dant, being  convicted,  alleged  exceptions. 

Dewey,  J.  In  criminal  prosecutions  of  a  character  like  the  present, 
it  is  unnecessary  to  prove  the  place  of  committing  the  offence  to  be  pre- 
cisely in  accordance  with  the  allegation  in  the  indictment.  Place  is 
immaterial,  unless  when  it  is  matter  of  local  description,  if  the  offence 
be  shown  to  have  been  committed  within  the  count}'.  All  that  is  neces- 
sary to  be  shown  is  that  the  offence  was  committed  at  any  place  within 
the  county.  2  Hawk.  c.  25,  §  84 ;  2  Russell  on  Crimes  (7th  Amer. 
ed.),  799  ;  1  Archb.  Crim.  PI.  (5th  Amer.  ed.)  99.     It  was  no  objection 


SECT.  III.]  C0MM0NWE.VLT1I   V.   TRAVEKSE.  47 

therefore  to  the  competency  of  the  evidence  offered,  that  it  tended  to 
prove  an  assault  committed  in  Chelsea,  while  the  indictment  alleged  the 
same  to  have  been  committed  at  Boston,  both  places  being  within  the 
count}'  of  .Sutfolk,  and  equally  within  the  jurisdiction.  This  rule  has 
been  so  long  recognized  and  acted  upon  that  the  case  presents  no  new 
or  doubtful  question  to  be  solved. 

Exceptions  overruled. 


COMMONWEALTH  v.  TRAVERSE. 
Supreme  Judicial  Court  of  Massachusetts.     1865. 

[Reported  11  All.  2G0.] 

Complaint  dated  April  3d,  1865,  charging  that  the  defendant  "on 
the  third  day  of  April,  in  the  year  of  our  Lord  eighteen  hundred  and 
sixty-five,  at  Newton,  in  the  County  of  Middlesex,  within  six  months 
last  past,"  was  a  common  seller  of  intoxicating  liquors  in  violation  of 
law. 

At  the  trial  in  the  Superior  Court  before  "Wilkinson,  J.,  on  appeal 
from  the  judgment  of  the  magistrate,  convicting  the  defendant,  the  dis- 
trict attorney  offered  no  evidence  of  sales  on  the  3d  of  April,  18C5,  but 
relied  upon  evidence  of  sales  made  at  several  times  within  six  months 
before  that  day.  The  defendant  objected  to  this  evidence,  but  it  was 
admitted,  and  the  defendant  was  found  guilt}',  and  alleged  exceptions. 

a.  D.  Smith,  for  the  defendant. 

Reed,  A.  G.  for  the  Commonwealth. 

Dewey,  J.  A  well  settled  distinction  has  long  prevailed  as  to  the 
mode  of  alleging  the  time  of  the  commission  of  an  offence  which  con- 
sists of  a  single^  act,  and  that  adopted  in  that  class  of  cases  where  the 
alleged  offence  consists  of  a  series  of  distinct  acts.  In  the  former, 
the  precise  day  alleged  is  not  material,  ai^d  the  evidence  of  such  single 
act  before  or  since  the  day  alleged,  if  before  the  finding  of  the  indict- 
ment and  within  the  period  permitted  by  the  statute  of  limitations,  is 
sufficient. 

On  the  other  hand,  in  the  cases  where  the  offence  consists  of  a  series 
of  acts,  the  practice  is  to  allege  the  same  to  have  been  committed  on 
a  certain  day  named,  and  on  divers  daj's  and  times  between  that  day 
and  some  subsequent  day  named.  The  allegation  that  the  acts  weie 
done  between  a  certain  day  named  and  the  day  of  the  finding  of  the 
indictment  has  also  been  held  sufliciently  to  designate  the  time  of  the 
commission  of  the  offence.  This  form  of  stating  the  time,  as  allowed 
in  this  class  of  cases,  gives  to  the  prosecutor  great  latitude  in  the  alle- 
gation of  time,  but,  having  fixed  it  by  the  indictment,  the  government 
is  bound  by  it.  And  this  has  been  held  to  be  the  rule  where  the  acts 
constituting  such  offence  are  alleged  to  have  been  committed  on  a 


48  STATE  V.   JOHNSON.  [CHAP.  III. 

certain  day  named.  The  evidence  must  be  confined  to  that  day,  and 
evidence  of  the  commission  of  the  offence  before  or  after  that  day  is 
incompetent.  Commonwealth  v.  El  well,  1  Gray,  462 ;  Commonwealth 
V.  Gardner,  7  Gray,  49-i ;  Commonwealth  v.  Sullivan,  5  Alien,  513. 

The  further  inquiry  is,  whether  this  complaint  has  properly  charged 
an  offence  on  any  other  day  than  the  third  day  of  April.  We  are  not 
disposed  to  favor  any  greater  laxity  in  the  form  of  the  indictment  in 
this  class  of  cases  than  has  been  already  sanctioned.  Here  the  usual 
order  of  such  allegation  of  the  time  is  reversed.  Instead  of  alleging 
the  commission  of  the  offence  on  a  certain  day,  and  on  divers  days  and 
times  subsequently  between  that  day  and  a  day  named,  the  allegation 
is  "within  six  months  last  past."  We  do  not  say  that  this  charge 
would  be  fatally  bad,  had  there  been  no  other  defect  in  stating  the 
time.  But  there  is  no  connecting  w^ord  between  the  allegation  of  an 
offence  committed  on  the  third  of  April,  and  the  further  allegation, 
"  within  six  months  last  past."  It  may  be  read  as  an  averment  that 
the  third  day  of  April  was  within  six  months  last  past.  We  think 
the  only  offence  properly  charged  here  is  that  of  being  a  common 
seller  of  intoxicating  liquors  on  April  3d,  1865.  As  already  stated, 
the  allegation  as  to  time  is  a  material  one,  and  the  government  must 
prove  the  offence  to  have  been  committed  on  that  day. 

Exceptions  sustained. 


STATE  V.  JOHNSON. 
Supreme  Court  of  Texas.     1869. 

[Reported  32  Texas,  96.] 

Appeal  from  Smith.     Tried  below  before  the  Hon.  Samuel  L,  Earle. 

The  appellee  was  indicted  for  the  theft  of  $160  in  coin  and  $60  in 
currency,  the  property  of  B.  H.  Denson.  The  indictment  was  quashed 
on  his  motion,  and  the  district  attorney  appealed  on  behalf  of  the 
State. 

E.  B.  Turner.,  Attorney-General,  for  the  State,  conceded  the  in- 
sufficiencj'  of  the  indictment. 

Lindsay,  J.  The  motion  to  quash  the  indictment  in  this  case  was 
properly  sustained.  There  is  no  allegation  in  it,  of  either  the  time  or 
of  the  place  of  the  commission  of  the  offence.  The  first  is  necessary, 
that  it  may  appear  from  the  charge  it  is  not  barred  b^'  the  statute  of 
limitations.  The  other  is  indispensable,  that  the  court  ma}'  know 
whether  it  has  jurisdiction  of  the  cause.  For  these  defects  it  was 
rightfully  quashed.     The  judgment  is  affirmed.  Affirmed, 


SECT.  III.]  STATE   V.   DODGE.  49 


STATE  V.  BEATON. 
Supreme  Judicial  Court  of  Maine.     1887. 

[Reported  79  Maine,  314.] 

On  exceptions  to  the  ruling  of  the  court  in  overruling  the  defendant's 
demurrer  to  the  complaint. 

An  appeal  from  the  decision  of  a  trial  justice  on  a  complaint  and 
warrant  for  fisliing  for  and  catching  lobsters  in  violation  of  law. 

Ro.'i'icell  S.  Partridge^  count}'  attorne}',  for  the  State. 

Hilton  and  JIuston,  for  the  defendant  cited :  State  y.  Baker,  34 
Maine,  ;r2  ;  Moody  v.  Ilinkley,  34  Maine,  200 ;  State  v.  Hanson,  39 
Maine,  337. 

Walton,  J.  Neither  a  complaint  nor  an  indictment  for  a  criminal 
offence  is  sufficient  in  law,  unless  it  states  the  day,  as  well  as  the  month 
and  year,  on  which  the  supposed  offence  was  committed.  In  this  par- 
ticular, the  complaint  in  this  case  is  fatally  defective.  It  avers  that "  on 
sundry  and  divers  days  and  times  between  the  twenty-third  day  of  Sep- 
tember, A.  D.  1885,  and  the  thirtieth  day  of  September,  A.  D.  1885," 
the  defendant  did  the  acts  complained  of.  But  it  does  not  state  any 
particular  day  on  which  an}'  one  of  the  acts  named  was  committed. 
Such  an  averment  of  time  is  not  sufficient.  State  v.  Baker,  34  INIaine, 
52  ;  State  v.  Hanson,  39  Maine,  337,  and  authorities  there  cited. 

Exceptions  sustained.     Complaint  quashed. 


STATE  V.  DODGE. 
Supreme  Judicial  Court  of  Maine.     1889. 

[Reported  81  Maine,  391.] 

Haskell,  J.^  "  Neither  a  complaint  nor  an  indictment  for  a  criminal 
offence  is  sufficient  in  law,  unless  it  states  the  day,  as  well  as  the  month 
and  year  on  which  the  supposed  offence  was  committed."  State  v. 
Beaton,  79  Maine,  314. 

An  act,  prohibited  by  statute  on  certain  particular  days  onh',  must 
be  charged  as  having  been  committed  on  one  of  those  particular  days  ; 
for  the  time  laid  is  a  material  element  in  the  offence,  and,  unless  laid 
on  a  da}'  within  the  statute,  no  offence  would  be  charged.  In  the  case 
at  bar,  both  time  and  place  are  material  elements  to  constitute  the  stat- 
ute offence.     State  v.  TurnbuU,  78  Maine,  392. 

The  statute  prohibits  the  maintaining  of  closed  weirs  in  certain  inland 
waters  on  Saturdays  and  Sundays  between  April  1st  and  July  15th. 

*  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 
4 


50  EEGINA   V.   MANSFIELD.  [CHAP.  III. 

R.  S.,  c.  40,  §  43.  The  indictment  charges  the  maintaining  of  the  weir 
on  June  1st,  Tuesday,  not  close  time,  and  on  divers  other  days  and 
times  between  that  day  and  July  loth.  All  this  may  have  been  law- 
fully done.  Saturday  and  Sunda}-  are  not  pointed  out  as  among  the 
"  divers  other  days  and  times."  The  defendants  are  presumed  to  have 
regarded  law,  not  to  have  violated  it. 

True,  the  indictment  avers  that  during  Saturday  and  Sunday,  June 
12  and  13,  the  defendants  were  bound  to  carry  and  keep  on  shore  the 
netting  which  closes  that  part  of  the  weir  where  fish  are  usually  taken, 
and  that  they  did  not  do  it.  But  if  they  did  not  maintain  the  weir  on 
those  days  they  had  no  need  to  do  it.  It  is  said  that  the  last  clause  in 
the  indictment  sufficiently  charges  the  oflence.  But  the  trouble  with 
that  clause  is,  that  it  assumes  what  is  nowhere  alleged,  that  the  defend- 
ants during  some  Saturday'  or  Sunday  maintained  the  weir. 

It  is  best  for  the  proper  administration  of  justice,  that  reasonable 
exactness  and  precision  of  statement  be  required  from  those  officers  of 
the  law  selected  on  account  of  their  professional  skill  in  this  behalf. 

Exceptions  sustained. 


SECTION  III.    {continued). 
(c)  Description. 

REGINA  V.   MANSFIELD. 
Nisi  Prius.     1841. 

[Reported  Car.  ^-  Marsh.  140.] 

The  prisoner  was  indicted  for  receiving  "  25  lbs.  weight  of  tin," 
knowing  the  same  to  have  been  stolen.  The  indictment  had  been 
removed  b}-  certiorari,  and  came  on  to  be  tried  at  Nisi  Prius.  There 
were  two  other  indictments  against  the  same  prisoner,  the  one  for  steal- 
ing iron,  and  the  other  for  receiving  brass,  knowing  it  to  have  been 
stolen. 

It  appeared  that  the  tin  in  question  consisted  of  two  pieces,  which  a 
witness  called  "  lumps  of  tin  ;"  but  on  cross-examination  he  admitted 
that  they  were  called  in  the  trade  "  ingots,"  but  added  that  that  term 
was  applied  as  well  to  the  pieces  of  tin  as  to  the  mould  in  which  they 
were  cast,  and  was  applied  to  the  shape.  The  tin  in  question  had  been 
cast  into  the  pieces  for  the  purpose  of  being  again  melted  up  for  use  in 
the  prosecutor's  manufactory,  and  in  the  middle  of  each  was  an  inden- 
tation for  the  purpose  of  breaking  them  in  two,  when  wanted  to  be 
melted  up  again.^ 

1  Tart  of  the  case,  not  relating  to  the  question  of  pleading,  is  omitted. 


SECT.  III.]  EEGINA   V.   MANSFIELD.  51 

Upon  the  close  of  the  case  for  the  prosecution,  Ludlow^  Serjt.,  for 
the  [)risoner,  submitted  that  the  tin  was  misdescribed.  Instead  of  being 
laid  as  so  many  pounds'  weight  of  tin,  it  ought  to  have  been  described  as 
two  ingots.  Wherever  an  article  has  obtained  a  name  in  the  trade 
which  is  applicable  to  it,  it  must  be  described  by  that  name.  From  the 
case  of  Kcx  v.  Stott,  2  Ea.  P.  C.  752,  it  would  seem  that  it  was  erro- 
neous to  charge  the  prisoner  with  stealing  so  many  pounds'  weight  of 
iron,  where  it  appeared  that  the  articles  stolen  were  actually  manu- 
fivcturcd.  It  would  be  bad  to  describe  a  piece  of  cloth  as  so  many 
pounds  of  wool.  The  object  is  to  enable  the  prisoner  to  plead  autrefois 
acquit. 

Talfourd,  Serjt.^  and  Greaves.  Rex  v.  Stott  is  quite  different  from 
tlie  present  case  ;  there  the  goods  were  actually  made  up  into  articles, 
which  had  specific  names ;  here  the  article  was  still  tin,  and  only  put 
in  the  shape  in  which  it  was,  for  the  purpose  of  being  afterwards  manu- 
factured ;  it  is  in  the  course  of  manufacture,  not  manufactured.  Al- 
though it  would  be  bad  to  describe  cloth  as  so  many  pounds  of  wool, 
still  an  end  of  a  bale  of  cloth  may  well  be  described  as  so  many  yards 
of  cloth ;  so  a  leg  of  mutton  ma}'  be  described  as  so  many  pounds' 
weight  of  mutton.  As  to  the  objection  that  the  part}^  could  not  plead 
autrefois  acquit^  it  is  the  same  question  :  for  if  the  description  is  suffi- 
cient here,  it  would  be  sufficient  if  autrefois  acquit  were  pleaded.  It 
is  idem  per  idem. 

Coleridge,  J.  It  seems  to  me  that  the  description  is  sufficient  to 
answer  all  the  purposes  which  are  required  by  law.  First,  it  is  the 
subject  of  larceny  equally,  whether  it  be  an  ingot  or  so  many  pounds' 
■weight  of  tin.  Secondly,  as  to  the  facility  of  pleading  autrefois  acquit^ 
the  prisoner  stands  in  the  same  situation,  whether  it  be  one  or  the  other, 
because  there  must  be  some  parol  evidence  in  all  cases  to  shew  what  it 
was  tliat  he  was  tried  for  before,  and  it  would  be  as  eas}'  to  prove  one 
as  the  other.  The  last  question  is,  whether  it  is  described  with  suffi- 
cient certainty,  in  order  that  the  jury  may  be  satisfied  that  it  is  the 
thing  described.  If  this  had  been  some  article  that,  in  ordinary  par- 
lance, had  been  called  by  a  particular  name  of  its  own,  it  would  have 
been  a  wrong  description  to  have  called  it  by  the  name  of  the  material 
of  which  it  was  composed,  as  if  a  piece  of  cloth  were  called  so  man}' 
pounds  of  wool,  because  it  has  ceased  to  be  wool,  and  nobody  could 
understand  that  you  were  speaking  of  cloth.  It  would  be  wrong  to  say 
so  many  ounces  of  gold,  if  a  man  stole  so  many  sovereigns  ;  you  would 
there  mislead  by  calling  it  gold.  If  it  were  a  rod  of  iron,  it  would  be 
sufficient  to  call  it  so  many  pounds'  weight  of  iron. 

The  case  went  to  the  jury,  who  returned  a  verdict  of  — 

Not  guilty. 


52  STATE   V.    NOBLE.  [CHAP.  IIL 


STATE  V.   NOBLE. 
Supreme  Judicial  Court  of  Maine.     1839. 

[Reported  15  Maine,  476.] 

Exceptions  from  the  Court  of  Common  Pleas,  Smith,  J.  presiding. 

Noble  was  indicted  for  fraudulently  and  wilfully  taking  from  the 
Kennebec  River  and  converting  to  his  own  use  certain  logs.  He  was 
found  guilty  on  the  first  count  only,  thus  describing  the  log:  "One 
pine  log  marked  H  X  W,  of  the  value  of  three  dollars,  of  the  goods  and 
chattels  of  J.  D.  Brown,  Charles  Mclntire,  and  John  Welch,  and  not 
the  property  of  said  Noble."  The  evidence  applied  entirely  to  a  pine 
log  marked  "  W  X  H  X  ^''^/i  «  girdle,''^  or  circle  cut  round  it.  Brown 
testified  that  one  of  their  logs,  partly  sawed  into  blocks,  with  the  mark 
last  mentioned  was  seen  by  him  near  Noble's  house,  "  but  that  the  log 
described  in  the  first  count  of  the  indictment  was  not  of  their  mark,  and 
that  he  should  not  claim  or  know  it  as  their  property."  Other  objec- 
tions were  made,  besides  that  arising  from  variation  in  the  description 
in  the  indictment  and  the  proof,  which  need  not  be  stated,  nor  the  facts 
on  which  they  were  founded.  The  Judge  on  this  point  instructed  the 
jury  that  the  mark  by  which  the  log  was  described  in  the  first  count 
might  be  rejected  as  surplusage,  and  if  they  found  that  the  log  which 
was  seen  near  Noble's  house  was  removed  from  the  river  and  sawed  by 
him,  with  the  intention  fraudulently  and  wilfully  to  convert  it  to  his 
own  use,  and  that  the  same  log  was  the  property  of  said  Brown,  Mc- 
lntire, and  Welch,  then  they  would  find  Noble  guilty  on  the  first  count. 
Noble  excepted  to  this  instruction.^ 

Weston,  C.  J.  It  ma}'  be  regarded  as  a  general  rule,  both  in  crim- 
inal prosecutions  and  in  civil  actions,  that  an  unnecessary  averment 
may  be  rejected,  where  enough  remains  to  show  that  an  oflence  has 
been  committed,  or  that  a  cause  of  action  exists.  In  Ricketts  v.  Solwa}', 
2  Barn.  «fe  Aid.  360,  Abbott,  C.  J.,  says,  "  There  is  one  exception  how- 
ever to  tliis  rule,  which  is,  where  the  allegation  contains  matter  of  de- 
scription. Tlien  if  the  proof  given  be  diflferent  from  the  statement,  the 
variance  is  fatal."  As  an  illustration  of  this  exception,  Starkie  puts 
the  case  of  a  man  charged  with  stealing  a  black  horse.  The  allegation 
of  color  IS  unnecessary,  yet  as  it  is  descriptive  of  that  which  is  the 
subject  matter  of  the  charge,  it  cannot  be  rejected  as  surplusage,  and 
the  man  convicted  of  stealing  a  white  horse.  The  color  is  not  essential 
to  tlie  offence  of  larcenv,  but  it  is  made  material  to  fix  the  identity  of 
that  which  the  accused  is  charged  with  stealing.     3  Stark.  1531. 

In  the  case  before  us  the  subject  matter  is  a  pine  log,  marked  in  a 
particular  manner  described.  The  marks  determine  the  identity;  and 
are  therefore  matter  purely  of  descri{)tion.     It  would  not  be  easy  to 

^  Argnments  of  counsel  are  omitted. 


SECT.  III.]  HASKINS   V.   THE   PEOi'LE.  53 

adduce  a  stronger  case  of  this  character.  It  might  have  been  sufficient 
to  have  stated  that  the  defendant  took  a  log  nioreh",  in  the  words  of 
the  statute.  But  under  the  charge  of  taking  a  pine  log,  we  are  quite 
clear  that  the  defendant  could  not  be  convicted  of  taking  an  oak  or  a 
birch  log.  The  offence  would  be  the  same ;  but  the  charge  to  which 
the  party  was  called  to  answer,  and  which  it  was  nicumbent  on  him  to 
meet,  is  for  taking  a  log  of  an  entirely  different  description.  The  kind 
of  timber,  and  the  artificial  marks  by  which  it  was  distinguished,  are 
descriptive  parts  of  the  subject  matter  of  the  charge,  which  cannot  be 
disregarded,  although  they  may  have  been  unnecessarily  introduced. 
The  log  proved  to  have  been  taken  was  a  different  one  from  that 
charged  m  the  indictment ;  and  the  defendant  could  be  legally  called 
upon  to  answer  onl^' for  taking  the  log  there  described.  In  our  judg- 
ment, therefore,  the  jury  were  erroneously  instructed  that  the  marks 
might  be  rejected  as  surplusage ;  and  the  exceptions  are  accordingly 
sustained. 

Wells^  for  Noble,  argued  orall}-. 

H.  W.  Paine,  County  Attorney,  afterwards  argued  in  writing. 


HASKINS  V.   THE  PEOPLE. 
Court  of  Appeals  of  New  York.     1857. 

[Reported  16  N.  Y.  344.] 

Writ  of  error  to  review  a  judgment  of  the  Supreme  Court,  affirming, 
on  eiTor  to  that  court,  a  judgment  of  the  Oyer  and  Terminer  of 
Onondaga  County. 

The  prisoner  was  indicted,  with  four  other  persons,  for  grand  larceny, 
the  property  alleged  to  have  been  stolen  being  money  and  bank  notes, 
the  property  of  David  J.  Shaw.  It  was  described  in  the  indictment  as 
"  two  promissory  notes  for  the  payment  of  money,  commonly  called 
bank  notes,  of  the  Stonington  Bank,  current  money  of  the  State  of  New 
York,  each  of  the  value  of  fifty  dollars ;  bank  bills  of  banks  to  the 
jurors  unknown,  and  of  a  number  and  denomination  to  the  jurors  un- 
known, of  the  value  of  six  hundred  dollars ;  silver  coin,  current 
money  of  the  State  of  New  York,  of  a  denomination  to  the  jurors 
unknown,  of  the  value  of  fifty  dollars  ;  gold  coin,  current  money  of  the 
State  of  New  York,  of  a  denomination  to  the  jurors  unknown,  of  the 
value  of  fifty  dollars." 

The  plaintiff  in  error  was  tried  separately  in  the  Oyer  and  Terminer, 
in  June,  1857.  Shaw,  the  owner  of  the  money  alleged  to  have  been 
stolen,  resided  at  Summer  Hill,  Cayuga  county.  His  iron  safe,  which 
was  kept  in  a  wing  in  his  house,  remote  from  the  apartment  in  which 
he  slept,  was  forced  open  during  the  night  of  the  27th  of  October,  1855. 


54  COMMONWEALTH   V    STONE.  [CHAP.  III. 

and  the  contents,  about  $600  in  mone}'  and  some  papers,  were  taken 
away.  Shaw  swore  that  there  were  among  the  mone}-  at  least  two  fifty- 
dollar  bills  of  the  Stonington  Bank  ;  that  the  residue  of  the  money  was 
in  current  bank  bills,  and  gold  and  some  silver  coins.  Upon  the 
examination  of  Shaw  he  was  asked  by  the  prosecution  to  state  the 
amount  and  kind  of  bills  and  of  gold  and  silver  coin.  The  prisoner's 
counsel  objected  to  the  inquiry  on  account  of  the  generality  of  the 
description  in  the  indictment.  The  objection  was  overruled  and  the 
prisoner's  counsel  excepted.  The  witness  described  the  different  kinds 
of  money  as  well  as  he  was  able.^ 

Dexio,  C.  J.  The  indictment  was  sufficient.  "WTien  the  substance  of 
the  offence  is  set  out,  the  jurors  may  omit  a  matter  of  description  which 
they  cannot  ascertain.  The  People  r.  Ta3-lor,  3  Denio,  91,  and  cases 
cited.  If  this  were  not  so  there  would  often  be  a  failure  of  justice. 
In  the  case  of  the  stealing  of  a  considerable  parcel  of  bank  notes  or  a 
quantity  of  coin,  it  would  frequently,  and  perhaps  generally,  happen 
that  the  owner  would  not  be  able  to  specify  the  different  kinds  of  notes 
or  the  various  species  of  coin.  The  description  of  them  as  bank  notes, 
and  as  gold  or  silver  coin,  together  with  a  statement  of  the  ownership, 
with  an  averment  that  a  more  particular  description  cannot  be  given, 
sufficiently  identifies  the  offence  to  guard  the  prisoner  against  the 
danger  of  another  prosecution  for  the  same  crime.  But  this  indictment 
would  be  sufficient  without  any  aid  from  this  rule.  Two  of  the  notes 
which  the  defendant  stole,  which  were  of  an  amount  sufficient  to  consti- 
tute grand  larceny,  were  described  with  particularity  ;  and  if  it  should 
be  granted  that  the  other  bills  and  the  coin  were  not  sufficiently  de- 
scribed, still  they  could  be  spoken  of  in  the  testimony  among  the  cir- 
cumstances attending  the  offence,  though  the  conviction  could  only  be 
had  as  to  the  property  of  which  there  was  a  sufficient  description.  The 
exception  upon  this  point  was  not  well  taken. 


COMMONWEALTH  v.  STONE. 
Supreme  Judicial  Court  of  Massachusetts.     1890. 

\Eeported  152  ^^nss  498.] 

IxDiCTMEXT  alleging  that  the  defendant,  at  a  hearing  in  the  Probate 
Court  holdcn  at  Worcester  m  the  county  of  Worcester  in  this  Common- 
wealth, procured  "  Laura  A.  Fairbanks  of  Worcester  in  said  county 
of  Worcester  "  to  commit  perjury.  At  the  trial  in  the  Superior  Court, 
before  Aldrich,  J.,  one  Laura  A.  Fairbanks,  who  was  admitted  to  be 
the  person  described  in  the  indictment  as  of  Worcester  in  this  Com- 
monwealth, testified,  without  contradiction,  that  at  the  time  she  testi- 

i  Part  of  the  ca.«e,  not  relating  to  the  question  of  pleadini^,  is  omitted. 


SECT.  Ill]  COMMONWEALTH   V.   STONE.  55 

fied  in  the  Proljatc  Court  her  residence  was  in  Brookline  in  the  State  of 
New  Hampshire,  and  has  been  there  since.  The  judge  declined  to  rule, 
as  requested  by  the  defendant,  that  "  tlicre  is  a  variance  between  the 
evidence  and  the  allegations  of  tlie  indictment  in  this,  that  the  indicts 
ment  alleges  perjury  by  Laura  A.  Fairbanks  of  Worcester,  in  the 
county  of  Worcester  in  the  Commonwealth  of  Massachusetts,  and  the 
evidence  tends  to  prove  perjury  only  by  Laura  A.  Fairbanks,  of  Brook- 
line,  New  Hampshire." 

The  jury  returned  a  verdict  of  guilty ;  and  the  defendant  alleged 
exceptions. 

TV.  jS.  B.  HopJi-ijis  t£-  F.  B.  Smith,  for  the  defendant. 

A.  J.  Waterman,  Attorney-General,  for  the  Commonwealth. 

Devens,  J.  The  gist  of  the  charge  in  the  indictment  is,  that  the  de- 
fendant procured  Laura  A.  Fairbanks  to  commit  perjury'  in  the  trial 
therein  described.  The  Laura  A.  Fairbanks  who  testified  in  the 
Superior  Court,  it  was  admitted,  was  the  same  person  who  had  testified 
in  the  Probate  Court  where  the  perjurj-  was  alleged  to  have  been  com- 
mitted, nor  did  it  appear  whether  there  was  any  person  of  the  same 
name  who  was  a  resident  of  Worcester.  The  indictment  described  the 
Laura  A.  Fairbanks  whom  the  defendant  was  charged  with  suborning 
as  "  of  Worcester  in  said  count}-  of  AVorcester"  in  this  Commonwealth. 
This  was  an  allegation  that  she  was  a  resident  of  Worcester,  and  the 
uncontradicted  evidence  was  that  the  person  who  had  testified  in  the 
Probate  Court,  and  also  in  the  Superior  Court,  was  at  the  time  and 
since  a  resident  of  New  Hampshire. 

It  has  been  held  that  where  a  person  necessaril}'  mentioned  in  an  in- 
dictment is  erroneously  described  as  George  E.  Allen  instead  of  George 
Allen,  or  Nathan  S.  Hoard  instead  of  Nathan  Hoard,  or  the  Boston 
and  Worcester  Railroad  Compan}-  instead  of  the  Boston  and  Worcester 
Railroad  Corporation,  the  variance  is  fatal,  unless  it  shall  be  shown 
that  the  person  so  named  is  known  b}'  the  one  name  as  well  as  the 
other,  as  the  correct  description  of  such  person  is  necessar}-  to  identify 
the  oflTence.  Commonwealth  v.  Shearman,  11  Cush.  546.  Common- 
wealth V.  Pope,  12  Cush.  272.  Commonwealth  v.  McAvo}',  16  Gray, 
235.  Where  a  person  or  thing  necessary  to  be  mentioned  in  an  indict- 
ment is  described  with  unnecessar}-  particularity,  the  circumstances  of 
the  description  are  to  be  proved,  as  they  are  made  essential  to  its 
identity.  Thus,  in  an  indictment  for  stealing  a  horse,  its  color  need  not 
be  mentioned  ;  but  if  it  is  stated,  it  is  made  descriptive  of  the  animal, 
and  a  variance  in  the  proof  of  its  color  is  fatal.  1  Greenl.  Ev.  §  65. 
3  Stark.  Ev.  (4th  Am.  ed.)  1530.  Commonwealth  v.  Wellington, 
7  Allen,  299.  State  v.  Noble,  15  Maine,  476.  Rex  v.  Craven,  Russ. 
&  Ry.  14. 

Where  circumstances  are  not  descriptive  of  the  crime,  a  discrepancy 
between  them  as  alleged  and  as  proved  is  not  important,  but  in  the  case 
at  bar  the  description  of  the  person  whom  the  defendant  was  cliargcd 
with  suborning  was  essential  to  this  identitv.     While  it  was  not  neces- 


56  CASTRO    V.   THE    QUEEN.  [CHAP.  III. 

sary  to  have  described  this  person  by  her  residence,  when  this  allega- 
tion was  introduced  it  was  to  be  proved,  as  it  was  this  person  whom  the 
defendant  was  charged  with  suborning.  In  an  action  for  malicious 
prosecution  of  the  pU\intiff  upon  a  charge  of  felony,  before  Baron 
Waterpark  of  Waterfork,  a  magistrate  of  the  kingdom  of  Ireland,  it 
was  held  that  proof  of  a  prosecution  before  Baron  Waterpark  of 
Waterpark  was  a  fatal  variance.  Walters  v.  Mace,  2  B.  &  Aid.  756. 
If,  therefore,  Fairbanks  was  not  a  resident  of  Worcester,  but  of  New 
Hampshire,  the  defendant  was  entitled  to  a  ruling  that  there  was  a 
variance  between  the  allegation  of  the  indictment  and  the  proof. 

The  Pub.  Sts.  c.  213,  §  IG,  provide  that  certain  defects  of  form,  as 
by  reason  of  the  omission  or  misstatement  of  the  degree,  occupation, 
&c.,  of  the  defendant,  or  of  his  place  of  residence,  shall  not  vitiate  the 
indictment,  but  it  has  made  no  such  provision  in  regard  to  others  neces- 
sarily mentioned  therein.  In  general,  it  may  be  said  that  a  misnomer, 
or  other  misdescription  of  a  defendant,  has  always  been  deemed  of  less 
importance  than  that  of  one  necessarily  mentioned  in  the  description  of 
the  offence,  as  the  defendant  may  plead  in  abatement  if  he  deems  the 
matter  of  sufficient  importance.  The  Pub.  Sts.  c.  205,  §§  5,  6,  also, 
which  prescribe  or  rather  modify  the  common  law  form  of  the  indict- 
ment for  perjury  and  subornation  of  perjury,  do  not  suggest  that  there 
is  to  be  any  further  latitude  in  the  description  of  the  person  whose  testi- 
mony has  been  alleged  to  be  suborned  than  that  which  has  heretofore 
been  permitted.  Exceptions  sustained. 


SECTION   IV. 

Counts. 


CASTRO,  alias  ORTON,  alias  TICHBORNE  v.  THE  QUEEN. 
House  of  Lords.     1881. 

[Reported  6  App.  Cas.  229.] 

This  was  an  appeal  against  a  decision  of  the  Court  of  Appeal,  which 
had  affirmed  a  judgment  of  the  Queen's  Bench  Division.  Law  Rep.  9 
Q.  B.  350  ;  5  Q.  B.  D.  490. 

On  the  8th  of  April,  1872,  the  grand  jury  at  the  Central  Criminal 
Court  found  a  true  bill  against  Thomas  Castro,  alias  Arthur  Orton, 
alias  Sir  R.  C.  D.  Tichborne,  Bart.,  for  perjury.  The  indictment  con- 
tained two  counts.  The  first  count  charged  that  on  the  10th  of  May, 
1871,  at  Westminster,  before  Sir  W.  Bovill,  Lord  Chief  Justice  of  the 
Common  Pleas,  an  issue,  duly  joined  in  an  action  of  ejectment,  came 
on  to  be  tried,  in  which  the  appellant  was  the  claimant,  and  Franklin 
Lushington  and  others  were  defendants,  that  the  appellant  appeared  as 


SECT.  IV.]  CASTRO   V.   THE   QUEEJT.  57 

a  witness  for  himself  and  was  duly  sworn,  and  gave  answers  iu  several 
matters  (which  were  particularly  set  forth),  and  that  the  appellant  on 
his  oath  falsely  answered  iu  these  matters,  and  so  committed  the  olfence 
of  perjury  against  the  peace  of  our  lady  the  Queen,  her  crown  and 
dignity. 

The  second  count  charged  that,  on  the  7th  of  April,  18G8,  a  suit  had 
been  instituted  in  Chancery,  in  which  the  appellant  was  the  plaintilf, 
and  the  Hon.  Teresa  Tichborne,  widow,  and  others  were  the  defendants, 
praying  that  in  case  it  might  be  deemed  requisite  for  him  to  take 
proceedings  at  law  for  the  recovery  of  the  Tichborne  estates,  the 
defendants  might  be  restrained  by  injunction  from  setting  up  certain 
outstanding  terms,  &c.,  therein  mentioned,  and  that  on  the  said  7th  of 
April,  1.SG8,  the  defendant  made  an  aflidavit  in  support  of  his  motion 
in  the  said  suit,  and  therein  made  certain  false  statements  (which  were 
fully  set  forth  in  the  count),  and  did  thereby  commit  perjury  against  the 
peace,  &c.,  as  before. 

The  appellant  pleaded  not  guilty.  The  indictment  was  removed  into 
the  (Queen's  Bench.  The  trial,  which  began  on  the  23d  of  April,  1873, 
and  terminated  on  the  28th  of  February,  1874,  took  place  before  Lord 
Chief  Justice  Cockburn.  The  verdict  was  in  the  following  form  :  "The 
jurors  so  empannelled,  &c.,  on  their  oath  say  that  the  said  Thomas 
Castro,  otherwise  called,  &c.,  is  guilty  of  the  premises  ou  him  above 
charged  iu  and  by  both  counts  of  the  indictment  aforesaid  above  speci- 
fied, in  the  manner  and  form  aforesaid,  as  by  the  indictment  aforesaid 
is  above  supposed  against  him."  The  judgment  that  followed  was, 
"That  the  said  Thomas  Castro,  otherwise,  &c.,  for  the  offence  charged 
in  and  by  the  first  count  of  the  said  indictment,  be  kept  in  penal  servi- 
tude for  the  term  of  seven  years  now  next  ensuing.  And  that  for  and 
iu  respect  of  the  offence  charged  in  and  by  the  second  count  of  the  said 
indictment,  he,  the  said  Thomas  Castro,  otherwise,  «&c.,  be  kept  in  penal 
servitude  for  the  farther  term  of  seven  years  to  commence  immediately 
upon  the  expiration  of  his  said  term  of  penal  servitude  for  his  offence 
in  the  first  count  of  the  said  indictment." 

On  the  13th  of  December,  1879,  Sir  John  Holker,  Her  Majesty's  then 
Attorney-General,  granted  his  fiat  for  a  writ  of  error,  which  was  after- 
wards issued,  and  the  case  was  argued  in  the  Court  of  Appeal,  when 
judgment  was  given  for  the  Crown.  5  Q.  B.  D.  490.  This  appeal  was 
then  brought. 

Mr.  Benjamin.,  Q.  C,  and  3Ir.  Atherley  Jones  {Mr.  Heddencick 
and  Mr.  Spratt  were  with  them),  for  the  appellant,  renewed  the  argu- 
ments used  in  the  court  below,  and  in  addition  to  the  cases  there  cited, 
mentioned  and  commented  on  Reg.  v.  Roberts,  Carth.  226  ;  1  Show. 
389  ;  Comb.  193  ;  4  Mod.  100  ;  Reg.  v.  Rhodes,  2  Ld.  Raym.  886  ;  and 
Rex  V.  Ellis.  6  B.  &  Cr.  145. 

The  Attornej'-Gcneral  {Sir  H.  James),  the  Solicitor-General  {Sir 
Farrar  Jlerschell),  Mr.  Poland  and  Mr.  A.  L.  Smith,  appeared  for 
the  Crown,  but  were  not  called  on. 


58  CASTRO   V.   THE   QUEEN.  [CHAP.  IlL 

Lord  Blackburn.^  My  Lords,  notwithstanding  the  vory  consider, 
able  time  which  has  been  occupied  in  the  argument,  I  have  never  been 
able  from  the  beginning  to  the  end  to  entertain  the  least  doubt  that  in 
this  case  the  judgment  ought  to  be  aflirmed. 

I  must  say  at  once  I  totally  disagree  with  what  has  been  repeatedly 
asserted  by  both  the  learned  counsel  at  the  bar.  I  totally  disagree  that 
the  pleadings  at  common  law  in  a  criminal  case  and  a  civil  case  were 
in  the  slightest  degree  different.  I  am  speaking  of  course  of  the  time 
before  the  Judicature  Acts  passed  which  swept  them  all  away.  ]\rany 
enactments  had  from  time  to  time  been  passed,  relieving  the  strictness 
of  pleadings  in  civil  cases,  which  did  not  relieve  them  in  criminal  cases  ; 
but  the  rules  of  pleading  at  common  law  were  exactly  the  same  in  each 
case.  The  course  taken  with  regard  to  an  indictment  was  this :  The 
Queen  having  sent  her  commission  to  the  grand  jury,  or  any  other  com- 
mission to  a  proper  tribunal,  the  tribunals  so  authorized  presented  all 
the  offences  that  came  to  their  knowledge  ;  if  it  was  brought  sufficiently 
to  their  knowledge  that  a  man  had  committed  ten  murders,  fifty  burg- 
laries, and  a  score  of  larcenies,  they  would  find,  not  one  finding  as  to 
them  all,  but  they  would  find  in  separate  counts  that  he  had  committed 
each  of  those  charged  offences  ;  and  if  there  were  many  other  persons 
(as  generally  there  are)  it  would  also  be  found  that  those  other  persons 
had  committed  the  offences  proved  against  them  also,  and  of  this  pre- 
sentment one  record  was  made  up.  Upon  that,  process  could  be  issued 
against  a  man  so  charged,  to  bring  him  upon  his  trial  before  a  petty 
jury,  to  try  whether  he  was  guilty  of  those  offences  so  charged  or  not. 

Now,  at  common  law  there  was  no  objection  whatever,  in  point  of 
law,  to  bringing  a  man  who  was  charged  with  several  offences,  if  those 
charo-es  were  all  felonies,  or  were  all  misdemeanors,  before  one  petty 
jury,°and  making  him  answer  for  the  whole  at  one  time.  The  chal- 
lenges and  the  incidents  of  trial  are  not  the  same  in  felony  and  in  mis- 
demeanor, and  therefore  felony  and  misdemeanor  could  not  be  tried 
together  ;  but  any  number  of  felonies  and  any  number  of  misdemeanors 
might.2    The  contrary  was  asserted  by  the  learned  counsel,  but,  though 

1  The  concurring  opinions  of  the  Lord  Chancellor  and  Lord  Watson,  and  part  of 
Lord  Blackburn's  opinion  are  omitted. 

•^  It  was  a  principle  of  the  English  law,  and  the  rule  has  been  adopted  in  some  of 
our  States,  that  there  can  be  no  conviction  for  a  misdemeanor  upon  an  indictment  for 
a  felony,  even  where  the  allegations  of  the  indictment  include  such  misdemeanor.  The 
reasonVortherule  wa-s,  that  persons  charfred  with  misdemeanors  had  certain  advan- 
tages at  their  trials  which  were  not  allowed  to  those  arraigned  for  felony,  and  it  was 
deemed  unjust  to  suffer  the  too  heavy  allegation  to  take  from  them  these  privileges. 
But  the  practice  of  withhf)lding  any  substantial  privilege  from  a  person  indicted  for 
felony,  which  is  allowed  to  one  indicted  for  misdemeanor,  does  not  obtain  in  this 
country,  and  therefore,  in  many  of  the  States  it  is  the  practice  to  permit  convictions 
for  misdemeanor  on  indictments  for  felony,  where  the  latter  includes  the  former.  1 
Bishop  on  Crim.  Law  (.5th  ed.)  sees.  804,  805.  ...  In  the  late  case  of  State  v.  Stewart, 
et  nl,  59  Vt.  273,  it  is  said  :  "  Although  authorities  can  be  found  that  lay  down  the  rule 
that  felonies  and  misdemeanors,  or  different  felonies,  can  not  be  joined  in  the  same 
indictment,  still  the  rule  in  this  and  most  of  the  States  is  otherwise.     It  is  always  and 


SECT.  IV.]  CASTRO   V.   THE   QUEEN.  59 

repeatedl}'  challenged  to  do  so,  ho  did  not  cite  an}-  authority'  in  support 
of  his  contention.  There  was  no  legal  objection  to  doing  this  ;  it  was 
frequently  not  fair  to  do  it,  because  it  might  embarrass  a  man  in  the 
trial  if  he  was  accused  of  several  things  at  once,  and  frequently  the 
mere  fact  of  accusing  him  of  several  things  was  supposed  to  tend  to 
increase  the  probability  of  his  being  found  guilty,  as  it  amounted  to 
giving  evidence  of  bad  character  against  him.  Whenever  it  would  be 
unfair  to  a  man  to  bring  him  to  trial  for  several  things  at  once,  an  appli- 
cation miglit  be  made  to  the  discretion  of  the  presiding  judge  to  say, 
"  Try  me  only  for  one  olFence,  or,  try  me  only  for  two  offences  ;  if  one 
was  the  real  thing  let  me  be  tried  for  one  and  one  only,"  and  wherever 
it  was  right  that  that  should  be  done  the  judge  would  permit  it.  For 
these  mixed  motives  it  was  well  cstal)lished  by  a  long  series  of  decisions 
(I  confess  I  doubt  whether  they  were  right  at  first,  but  certainly  they 
have  been  both  well  established  now  and  sanctioned  b}-  statute  —  that 
is  quite  clear)  that  where  the  several  charges  were  of  the  nature  of 
felony,  the  joining  of  two  felonies  in  one  count  was  so,  necessaril}',  I 
ma}'  say,  unfair  to  the  prisoner  that  the  judge  ought,  upon  an  applica- 
tion being  made  to  him,  to  put  the  prosecutor  to  his  election  and  send 
them  to  two  trials.  It  never  was  decided,  even  in  felony,  that,  if  tlmt 
application  for  the  election  was  not  made,  the  joining  of  several  fel- 
onies, that  is  to  say,  the  taking  several  felonies  which  had  been  found 
together,  and  trying  those  several  felonies  before  one  petty  jury,  was 
■wrong  in  point  of  law  ;  on  the  contrar}',  it  was  repeatedl}'  held  that  it 
was  right  enough,  although,  if  the  proper  application  had  been  made  at 
the  proper  time,  in  a  case  of  felony,  the  party  prosecuting  would  have 
been  put  to  his  election  or  made  to  take  one  felony  only,  and  not  both 
at  the  same  time.  But  in  cases  of  misdemeanor  it  was  by  no  means  a 
matter  of  course  tliat  that  should  be  done.  I  think  that  if  the  judge, 
upon  an  application  made  to  him,  had  been  satisfied  that  to  try  the  man 
for  several  misdemeanors  together  would  woi'k  injustice  to  the  prisoner, 
he  had  a  perfect  right  to  say,  "  I  will  not  work  this  injustice  by  trying 
them  together,  let  us  diminish  them  in  number  and  try  a  reasonable 
number  and  no  more."  I  do  not  know  Avhether  tliat  was  ever  done 
in  a  case  of  misdemeanor,  but  I  feel  very  little  doubt  that  it  may  have 
been. 

I  think  that  in  such  a  case  as  the  American  case,  Tweed  v.  Lis- 
comb,  lo  Sickel's  New  York  Ap.  Cas.  559,  which  was  cited,  where  a 
man  was  called  upon  to  answer  before  one  jury  at  one  time  for  two 

everywhere  permissil)lc  for  the  pleader  to  .set  forth  the  offence  he  seeks  to  prosecnte, 
in  all  the  various  ways  necessary  to  meet  the  possible  pha.'ses  of  evidence  that  may 
appear  at  the  trial.  If  the  counts  cover  the  same  transaction,  though  involving 
offences  of  different  grades,  the  court  has  it  in  its  power  to  preserve  all  rights  of 
defence  intact."  See  also  Sterick  v.  Commonwealth,  78  Pa.  St.  460;  Hunter  v.  Com- 
monwealth, 79  id.  503;  Hutchi.«oa  v.  Commonwealth,  82  id.  472;  Hawker  i-.  The 
Teople,  75  N.  Y.  487;  Crosby  v.  Commonwealth,  II  Mete.  575  ;  State  c.  Hood.  51  Me. 
36.3;  Commonwealth  v.  McLaughlin,  12  Cush.  612;  State  v.  Lincoln,  49  N.  H.  464 
Baker,  J.,  in  Herman  v.  The  People,  131  111.  594,  598.  —  Ed. 


60  CASTEO   V.   THE   QUEEN.  [CHAP.  Til. 

hundred  offences,  the  man  might  not  unreasonably  have  said,  "That 
is  too  much  to  put  a  man  upon  his  trial  for ;  select  five  or  six,  tr\-  me 
on  those,  let  the  rest  stand  over."  I  do  not  see  that  that  would  be  at 
all  an  unreasonable  application.  And  in  the  present  case,  if  an  appli- 
cation had  been  made  to  the  Court  of  Queen's  Bench  to  put  the  party  to 
his  election,  and  if  it  had  been  said  "  I  cannot  be  fairly  tried  for  one 
offence  of  perjury  committed  in  Middlesex,  if  at  the  same  time  I  am  to 
be  tried  for  another  perjury  committed  in  London,  therefore  there  must 
be  two  separate  trials  ; "  if  such  an  application  had  been  made  the 
judges  of  the  Queen's  Bench  would  doubtless  have  said,  We  will  listen 
to  the  arguments  that  may  be  urged  in  its  favor.  What  they  could 
possibly-  have  been  I  do  not  know,  but  no  such  application  was  made. 
The  prisoner  was  tried  upon  the  two  counts  before  one  petty  jury.  They 
were  taken  both  together,  and  then  the  result  was  that  he  was  found 
guilty  upon  both. 

Something  was  attempted  to  be  argued  upon  the  wording  here,  namely, 
that  he  was  found  "  guilty  of  the  premises"  in  both  counts,  to  the  effect 
that  that  did  not  mean  the  premises  charged  in  each  of  the  counts,  but 
meant  onh'  (if  I  understand  the  argument  rightly)  such  premises  as 
were  charged  not  onl}'  in  the  one  but  also  in  the  other.  In  the  first 
place,  that  is  not  the  meaning  of  the  words ;  and,  secondly,  it  would 
be  utterly  absurd,  because  the  one  count  related  to  things  which  happened 
in  Middlesex,  and  the  other  related  entire!}'  to  things  which  happened 
in  London  three  years  before  ;  therefore  there  could  be  nothing  identi- 
cal in  the  two. 

But  he  was  found  guilt}',  and  then  came  the  question  what  was  to  be 
the  sentence.  It  is  clear  that  if  the  court  had  pleased  to  grant  an  ap- 
plication these  two  counts  might  have  been  tried,  the  one  in  London 
before  a  London  jury,  and  the  other  in  Middlesex  before  a  Middlesex 
jury ;  but  for  the  act  relating  to  the  Central  Criminal  Court,  which 
gives  that  court  jurisdiction  over  both  London  and  Middlesex,  they 
must  have  been  so  tried.  But  even  now  they  might  have  been  so  tried, 
and  if  they  had  been  so  tried,  and  if  each  jurj-  had  found  a  verdict  of 
guilty  on  the  counts  brought  before  it  separately,  Rex  v.  Wilkes,  4  Burr. 
2527  ;  19  How.  St.  Tr.  1075  ;  4  Bro.  P.  C.  360,  would  have  been  abso- 
lutely in  point  as  to  the  sentence.  There  would  not  have  been  a  pretext 
for  saying  there  was  the  least  difference. 

But  then  it  is  put  in  the  argument  in  this  way,  that  when  the}'  are 
both  tried  before  one  jur}-,  and  when  the  prosecutor  has  not  been  put 
to  his  election,  but  the  trial  for  both  offences  has  taken  place  together, 
the  consequence  must  be  that  the  prisoner  is  not  to  be  punished  in  the 
same  way  as  he  would  have  been  if  he  had  been  tried  for  each  before 
two  separate  judges,  and  he  is  therefore  entitled  to  get  off  with  less 
punishment.  Why?  I  am  sure  I  cannot  conceive,  nor  can  I  see  that 
an}'  authority  has  been  cited  for  that,  at  any  rate  in  the  English  law, 
nor  does  it  proceed  on  any  reason.  In  regard  to  the  American  case, 
The  People  ex  rel.  Tweed  v.  Liscomb,  15  Sickel's  New  York  Ap.  Cas. 


SECT.  IV.]  CASTRO  V.    THE  QUEEN.  CI 

559,  which  was  cited,  it  might  be  enough  to  say  that  I  observe  that 
the  Araerican  case  proceeds  upon  the  express  ground  that  the  court 
was  acting  upon  New  York  decisions,  subsequent  to  the  Declaration 
of  Independence,  and  upon  New  York  statutes,  and  not  upon  English 
rules  or  English  law.  I  dare  say  that  decision  may  be  right  accord- 
ing to  those  New  York  decisions  and  statutes,  but  the  decision  does 
not  apply  here.  They  say  that  according  to  their  view  of  the  New  York 
statutes  and  the  New  York  decisions,  where  there  is  but  one  trial  before 
one  jury,  it  must  be  for  one  otTence,  and  for  one  offence  only,  and  upon 
that  they  all  rest.  They,  logically  enough,  say,  if  that  is  granted  where 
there  are  sentences  passed  for  more  than  one  offence,  all  but  one  must 
be  idtra  vires  ;  accordingly  they  held  that  the  power  of  passing  a  sen- 
tence was  exhausted  by  the  first  sentence.  I  leave  it  to  the  American 
judges  to  say  whether  that  was  right  or  not  according  to  American  law. 
I  do  not  pretend  to  express  an  opinion  on  that,  but  I  am  quite  clear 
that  it  is  not  English  law.  I  think  the  English  decisions  are  all  the 
other  wa}-,  and  the  reason  of  the  case  is,  to  my  mind,  quite  clearly  the 
other  way. 

Now  I  will  mention  but  one  or  two  cases  which  prove  it.  I  will  not 
quote  them  at  length.  The  first  is  Y'oung  v.  The  King,  3  T.  R.  98, 
where  the  law  is  laid  down  in  the  way  I  have  stated,  that  it  is  not  a 
matter  of  right  and  law  that  they  shall  not  be  tried  together,  but  only 
a  matter  of  election.  Then  comes  Rex  v.  Jones,  2  Camp.  131,  where 
Lord  EUenborough  both  laid  down  the  law  as  I  have  stated  it,  and 
acted  upon  it.  Then  Rex  v.  Kingston,  8  East,  41,  where  Lord  Ellen- 
borough  again  repeats  the  doctrine ;  and  lastly,  Rex  v.  Robinson,  1 
Moo.  C.  C.  413,  which  has  been  already  cited,  where  it  was  said  that 
the  doctrine  of  Rex  v.  Wilkes,  4  Burr.  2527  ;  19  How.  St.  Tr.  1075  ; 
4  Bro.  P.  C  360,  ought  to  have  been  applied  to  a  case  where  there  were 
two  misdemeanors  in  separate  counts  tried  together  before  one  jur}'. 
My  Lords,  taking  all  those  cases  together,  I  myself  can  feel  no  doubt 
at  all  that,  b}'  the  English  law,  and  going  by  that  alone,  there  is  not  a 
pretence  for  this  writ  of  error. 

Judgment  appealed  from  affirmed^  and  appeal  dismissed} 

1  I  have  examined  with  some  care  the  cases  in  the  courts  of  this  State  and  of 
England  to  which  we  have  been  referred,  or  which  have  come  under  my  observation, 
and  I  find  no  authority  for  holding  that  the  common  law,  as  it  existed  in  England  in 
April,  1775,  or  as  it  exists  and  is  administered  in  this  State  at  this  time,  permits  cumu- 
lative sentences  to  be  imposed  upon  conviction  for  several  distinct  misdemeanors, 
charged  in  different  counts  in  a  single  indictment,  in  the  aggregate  exceeding  the 
punishment  prescribed  by  law  as  the  extreme  limit  of  puuisliment  for  a  single  mis- 
uenicnnor.  I  do  not  regret  this.  A  proper  administration  of  the  criminal  law,  as 
w  -11  in  the  public  interest  as  for  the  protection  of  those  accused  of  crime,  requires  a 
different  rule.  The  power  of  the  court  was  exhausted  by  one  sentence  to  imprison- 
ment for  one  year,  and  the  payment  of  a  fine  of  S250;  or  if  several  judgments  can  be 
pronounced  by  a  sentence,  the  same  in  the  aggregate,  distributing  such  punishment 
and  apportioning  it  to  the  convictions  upon  the  several  counts,  according  to  the  de- 
merits of  the  offences  charged  in  each ;  each  and  every  of  the  judgments  and  sentence!), 
in  excess  of  that  limit,  was  coram  nun  judtce.     A  judgment  in  the  form  and  to  the 


62  common\st:alth  v.  tuck.  [chap.  m. 


COMMONWEALTH  v.  TUCK. 
Supreme  Judicial  Court  of  Massachusetts.     1838. 

[Reported  20  Pick.  356.] 

Morton,  J.,^  delivered  the  opinion  of  the  court.  Several  objections 
have  been  made  against  the  indictment  and  urged  with  ingenuity 
and  force.  Although  they  may  be  inconsistent  with  each  other,  yet 
their  inconsistency  is  no  fatal  infirmit}-,  and  if  either  of  them  is  well 
founded  and  incurable,  it  must  prevail.  Some  of  them  deserve  serious 
consideration. 

The  first  objection  is  duplicit}'.  It  is  argued  that  the  indictment  in 
one  count  charges  two  distinct  substantive  offences,  shop-breaking  and 
larceny.  This  objection  assumes  that  both  crimes  are  well  charged. 
Two  questions  arise  upon  this  point :  is  the  indictment  double  ?  and 
if  so,  is  the  objection  seasonabl}'  taken  ? 

The  general  rule,  unquestionabl}-,  is  that  two  or  more  crimes  cannot 
be  joined  in  the  same  count  of  an  indictment.  Archb.  Crim.  PI.  25. 
This  rule,  which  is  not  onl}'  convenient  in  practice,  but  essential  to  the 
rights  of  the  accused  and  important  to  the  due  administration  of  crimi- 
nal law,  should  not  be  disregarded.  But  it  has  exceptions.  Where 
two  crimes  are  of  the  same  nature  and  necessarily  so  connected  that 
they  may,  and  when  both  are  committed  must  constitute  but  one  legal 
offence,  they  should  be  included  in  one  charge.  Familiar  examples  of 
these  are,  assault  and  batteiT,  and  burglary.  An  indictment  for  the 
latter  is  similar  to  the  one  before  us.  1  Stark.  Crim.  PI.  (2d  ed.)  39. 
An  assault  and  battery  is  really  but  one  crime.  The  latter  includes  the 
former.  A  person  ma}'  be  convicted  of  the  former  and  acquitted  of  the 
latter,  but  not  vice  versa.  They  must  therefore  be  charged  as  one 
offence.  Bui.  N.  P.  15.  So  in  burglary,  where  the  indictment  charges 
a  breaking  and  entry  with  an  intent  to  steal  and  an  actual  stealing 
(which  is  the  common  form),  the  jurj-  may  acquit  of  the.  burglary  and 
convict  of  the  larcen}',  but  cannot  convict  of  the  burglary  and  larceny 
as  two  distinct  offences.  The  latter  is  merged  in  the  former,  and  they 
constitute  but  one  oflence.     Rex  v.  Withal,  1  Leach,  102. 

extent  allowed  by  law  once  pronounced,  the  power  of  the  court  became  functus  officio 
in  respect  to  that  prosecution  and  the  indictment,  except  to  see  that  the  judgment  was 
executed.  There  was  no  longer  any  record  of  verdict  upon  which  the  court  could  act. 
The  jurisdiction  over  the  person  of  the  condemned  was  exhausted,  and  as  if  no  prose- 
cution had  ever  been  instituted  against  him.  The  purposes  of  the  prosecution  and  of 
the  indictment  had  been  accomjdished  if  the  punishment  for  the  offence  is  fixed  by 
statute,  a  judgment  in  excess  of  the  statutory  limit  is  void  for  the  excess,  as  we  have 
seen  by  adjudged  cases.  —  Allen,  J.,  in  People  ex  rel.  Tweed  v.  Liscomb,  60  N.  Y.  559, 
590. 

1  The  opinion  alone  is  given,  and  part  of  it,  not  relating  to  the  question  of  pleading, 
is  omitted. 


SECT.  IV.]  COMMONWEALTH   V.   FITCIIBURG   RAILROAD.  63 

It  is  dilficult  to  distinguish  the  case  at  bar  from  burglary.  An  in- 
dictment setting  forth  that  the  defendant  broke  and  entered  the  shop 
with  intent  to  steal,  would  be  good.  Can  the  addition  of  the  fact  that 
he  did  steal,  wliich  is  the  best  evidence  of  his  intention,  vitiate  tlie  in- 
dictment? AVe  cannot  perceive  that  it  does.  It  is  true  the  main 
charge  might  be  established  without  proof  of  the  larceny,  and  the  lar- 
ceny might  be  established  without  proof  of  the  breaking  and  entry  ; 
but  wherein  does  this  differ  from  burglary  ?  The  principles  governing 
both  seem  to  be  the  same. 

But  even  if  duplicit}'  existed  in  this  indictment,  it  ma}'  well  be 
doul)tcd  whether  the  objection  does  not  come  too  late.  In  civil  actions 
duplicity  is  cured  by  general  demurrer  or  by  pleading  over.  Arclib. 
PI.  and  Ev.  96,  And  in  criminal  cases  it  is  extremely  doubtful  whether 
it  can  be  taken  advantage  of  in  arrest  or  error.  Archb.  Crim.  PI.  21. 
See  Commonwealth  v.  P^aton,  15  Pick.  273.  Indeed,  we  think  the 
better  opinion  is,  that  it  cannot. 

It  is  true  that  the  statute  of  jeofails  does  not  extend  to  criminal 
prosecutions.  A  defective  indictment  cannot  be  cured  bj-  verdict.  If 
the  crime  be  not  correctl}'  described,  no  judgment  can  be  rendered 
either  upon  verdict  or  plea  of  guilty.  2  Hale's  P.  C.  193  ;  Common- 
wealth V.  Morse,  2  Mass.  R.  130;  Commonwealth  u  Hearsey,  1  3Iass. 
R.  137. 

But  the  objection  now  under  consideration  is  totall}'  different.  It  is 
not  that  the  offence  is  defectively  set  forth,  but  that  more  than  one 
offence  is  sufiiciently  set  forth  in  the  same  indictment.  The  onl}'  argu- 
ment which  lies  against  the  latter  is,  that  it  subjects  the  defendant  to 
inconvenience  and  danger  b}'  requiring  him  to  prepare  himself  to  meet 
several  charges  at  the  same  time.  Tlie  appropriate  remed}'  would  be  a 
motion  to  the  court  to  quash  the  indictment,  or  to  confine  the  prose- 
cutor to  some  one  of  the  chargres.    Archb.  Crim.  PI.  3. 


COMMONWEALTH  v.   FITCHBURG  RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts.     1876. 

[Reported  120  3Iass.  372.] 

Lord,  J.^  The  indictment  in  this  case  contained  five  counts,  and  as 
appears  by  the  bill  of  exceptions,  all  for  the  same  ofl'ence,  although  it 
is  not  alleged,  as  sometimes  it  is,  that  the  various  counts  are  different 
modes  of  charging  the  same  offence.  It  has  long  been  the  practice  in 
this  Commonwealth  to  charge  several  misdemeanors  in  different  counts 
of  the  same  indictment,  and  to  enter  verdicts  and  judgments  upon  the 

^  The  opinion  alone  is  given,  and  part  of  it  not  relating  to  the  question  of  pleading 
is  omitted. 


64  COMMONWEALTH   V.   FITCHBURG  RAILROAD.         [CHAP.  IIL 

several  counts,  in  the  same  manner  and  with  the  same  effect  as  if  a 
separate  indictment  had  been  returned  upon  each  charge.  It  has  also 
been  long  established  that  the  same  offence  may  be  charged,  as  com- 
mitted b}'  different  means  or  in  different  modes,  in  various  distinct 
counts  of  an  indictment,  and  that  a  general  verdict  of  guilt}'  upon  such 
indictment  and  judgment  thereon  is  a  conviction  of  but  a  single  offence, 
and  is  deemed  to  be  upon  that  count  of  the  indictment  to  which  the 
evidence  is  applicable. 

The  first  count  charges  generally'  a  killing  of  the  person  named 
therein  within  the  city  of  Somerville,  b}'  reason  of  the  gross  negligence 
of  the  servants  of  the  defendant  in  the  management  of  a  locomotive 
engine  then  in  charge  of  said  servants. 

The  second  count  charges  the  killing  to  have  been  b}'  collision  at  the 
crossing  at  grade  of  a  highway  in  Somerville,  b}'  reason  of  the  same 
negligence. 

The  third  count  charges  that  the  death  was  caused,  either  by  the 
defendant's  own  neglect  or  the  neglect  of  its  servants,  by  collision  at 
the  crossing  at  grade  of  a  town  way  in  Somerville,  and  that  it  was  by 
reason  of  neglect  of  the  servants  and  agents  in  charge  to  ring  the  bell 
or  sound  the  whistle  upon  approaching  said  crossing  as  required  by 
law. 

It  is  not  necessary  to  refer  to  the  other  counts,  as  there  was  a  verdict 
of  not  guilty  upon  them. 

The  jury  returned  a  verdict  of  guilty  upon  each  of  the  first  three 
counts.  The  court  are  all  of  opinion  that  this  must  be  deemed  to  have 
been  a  mistrial.  But  one  offence  was  charged,  and  the  jur}-  should 
have  been  instructed  to  return  a  general  verdict  of  guilty  or  not  guilty 
upon  the  whole  indictment  as  for  a  single  offence,  which  would  have 
been  in  conformity  with  the  long  and  well  established  practice  in  this 
Commonwealth  ;  or  they  should  have  been  instructed  to  return  a  verdict 
of  guilty  upon  the  count  proved,  if  either  was  proved,  and  not  guilty 
upon  all  the  others.  As  the  record  now  stands,  the  defendant  corpora- 
tion was  charged  with  five  distinct  misdemeanors,  of  three  of  which  it 
was  found  guilty,  and  of  two  of  which  it  was  found  not  guilt}'.  The 
bill  of  exceptions,  however,  shows  that  but  one  offence  was  committed, 
and  it  is  suggested  that  a  nolle  prosequi  may  be  entered  as  to  two  of 
the  counts,  and  judgment  upon  the  other.  It  is  obvious  that  inasmuch 
as  the  several  counts  may  be  supported  by  different  evidence,  and  as 
they  are,  at  least  to  some  extent,  inconsistent  with  each  other,  it  is  im- 
possible to  determine  which  was  proved,  it  being  certain  that  all  could 
not  have  been.     The  verdict  must  therefore  be  set  aside. 


SECT.  IV.  J  CLAASEN   V.   UNITED   STATES.  65 


CLAASEN  y.  UNITED  STATES. 
Supreme  Coukt  of  the  United  States.     1891. 

[Reported  142  U.  S.  140.] 

Gray,  J.^  There  can  be  no  doubt  of  the  suflieicncy  of  the  first  count  on 
which  the  defendant  whs  convicted.  It  avers  that  the  defendant  was 
president  of  a  national  banking  association  ;  that  by  virtue  of  his  oliice 
he  received  and  took  into  his  possession  certain  bonds  (fully  described), 
the  property  of  the  association  ;  and  that,  with  intent  to  injure  and  de- 
fraud the  association,  he  embezzled  the  bonds  and  converted  them  to 
his  own  use.  On  principle  and  precedent,  no  further  averment  was  re- 
quisite to  a  complete  and  sufficient  description  of  the  crime  charged. 
United  States  v.  Britton,  107  U.  S.  655,  6G9  ;  The  King  y.  Johnson, 
3  M.  &  S.  539,  549  ;  Starkie  Crim.  PI.  (2d  ed.)  454 ;  3  Chitty  Crim. 
Law,  981 ;  2  Bishop  Crim.  Pro.  §§  315,  322. 

This  count  and  the  verdict  of  guilty  returned  upon  it  being  sufficient 
to  support  the  judgment  and  sentence,  the  question  of  the  sufficiency  of 
the  other  counts  need  not  be  considered. 

In  criminal  cases  the  general  rule,  as  stated  by  Lord  Mansfield  before 
the  Declaration  of  Independence,  is  "  that  if  there  is  any  one  count  to 
support  the  verdict,  it  shall  stand  good,  notwithstanding  all  the  rest  are 
bad."  Peake  v.  Oldham,  Cowper,  275,  276  ;  Rex  v.  Benfield,  2  Bur. 
980,  985.  See  also  Grant  v.  Astle,  2  Doug.  722,  730.  And  it  is  set- 
tled law  in  this  court,  and  in  this  country  generally,  that  in  any  crimi- 
nal case  a  general  verdict  and  judgment  on  an  indictment  or  information 
containing  several  counts  cannot  be  reversed  on  error,  if  any  one  of  the 
counts  is  good  and  warrants  the  judgment,  because,  in  the  absence  of 
anything  in  the  record  to  show  the  contrary,  the  presumption  of  law  is 
that  the  court  awarded  sentence  on  the  good  count  only.  Locke  v. 
United  States,  7  Cranch,  339,  344 ;  Clifton  v.  United  States,  4  How. 
242,  250;  Snyder  v.  United  States,  112  U.  S.  216;  Bond  v.  Dustin, 
112  U.  S.  eOi,  609  ;  1  Bishop  Crim.  Pro.  §  1015  ;  Wharton  Crim.  PI. 
&  Pract.  §  771. 

The  opposing  decision  of  the  House  of  Lords,  in  1844,  in  the  well 
known  case  of  O'Connell  v.  The  Queen,  was  carried,  as  appears  by  the 
report  in  11  CI.  &  Fin,  155,  by  the  votes  of  Lord  Denman,  Lord  Cot- 
tenham  and  Lord  Campbell  against  the  votes  of  Lord  Lyndhurst  and 
Lord  Brougham,  as  well  as  against  the  opinions  of  a  large  majority  of 
the  judges  consulted,  and  the  universal  understanding  and  practice  of 
the  courts  and  the  profession  in  England  before  that  decision.  It  has 
seldom,  if  ever,  been  followed  in  the  United  States. 

1  The  opinion  only  is  p^iven  ;  it  states  the  case.  Part  of  the  opinion,  not  relating  to 
the  question  of  pleading,  is  omitted. 

6 


66  CLAASEN   V.   UNITED   STATES.  [CHAP.  IIL 

In  Commonwealth  v.  Boston  «&;  Maine  Railroad,  133  Mass.  383,  392, 
and  in  Wood  v.  State,  59  N.  Y.  117,  122,  relied  on  by  the  plaintiff  in 
error,  the  general  rule  was  not  impugned,  and  judgment  upon  a  general 
verdict  was  reversed  because  of  erroneous  instructions,  duly  excepted 
to  by  the  defendant  at  the  trial,  expressly  authorizing  the  jury  to  con- 
vict upon  an  insufficient  count. 

In  the  case  now  before  us,  the  record  does  not  show  that  any  instruc- 
tions at  the  trial  were  excepted  to,  and  the  jury  did  not  return  a  general 
verdict  against  the  defendant  on  all  the  counts,  but  found  him  guilt}'  of 
the  offences  charged  in  each  of  the  five  counts  now  in  question.  This 
being  the  case,  and  the  sentence  being  to  imprisonment  for  not  less 
than  five  years  nor  more  than  ten,  which  was  the  only  sentence  author- 
ized for  a  single  offence  under  the  statute  on  which  the  defendant  was 
indicted,  there  is  no  reason  why  that  sentence  should  not  be  applied  to 
any  one  of  the  counts  which  was  good. 


SECT,  l]  vaux's  case.  67 

CHAPTER  IV. 
FORMER  CONVICTION  OR  ACQUITTAL. 


SECTION  I. 

Double  Jeopardy. 

VAUX'S  CASE. 
Queen's  Bench.     1592. 

[Reported  4  Coke,  44  «.] 

"William  Vaux,  at  the  sessions  of  peace  for  the  county  of  Northum- 
berland, held  27  julii^  anno  32  Eliz.  before  the  justices  of  peace  of  the 
same  county,  was  indicted  of  voluntarily  poisoning  of  Nicholas  Ridley, 
•which  indictment  was  removed  into  the  King's  Bench  ;  and  in  discharge 
thereof  the  said  Vaux  pleaded  that  at  another  time,  sc.  12  Augusti, 
anno  30  Eliz.,  at  Newcastle  upon  Tyne,  in  the  county  of  Northumber- 
land, before  the  Justices  of  Assise  of  the  same  county  the  said  Vaux 
was  indicted :  quod  cum  Nick'  Ridley  miper  de  W.  in  com'  prmd' 
Armig'  jam  defunctus,  per  multos  annas,  ante  obitum  sunm  nuptus 
fuisset  cuidam  Margaretoi  uxori  ejus,  et  nullum  exitum  habuit,  prced' 
Will'  Vaux  niiper  de  K.  in  com'  C.  generos  subdole,  cauCe,  at  diabolice 
inte7idens  mortem,  venenationem,  et  destructioneyn  ipsius  Nicolai,  et 
Deum  prcB  oculis  non  habens,  20  Decembris,  anno  28  Eliz.  apud  TK 
prcedict'  felonice,,  voluntarie,  et  ex  malitia  sua  precogitata,  2^6^S'^^de- 
hat  eundem  NichoV  recliiere  et  bibere  rpuendam  potum  mixtuvi  cum 
quodam  veneno  vocaf  ca?itkarides,  affirmans  et  verijicans  eidem  NicK 
quod'  prced'  potus  sic  mixtus  cum  prced'  veneno  vocaf  cantK  non  fuit 
intoxicatus  (Anglice  poisoned)  sed  quod  per  reception'  inde  prc^d! 
Nick'  exit'  de  corpore  dictae  MargaretCB  tunc  uxoris  sum  procuraret, 
et  haberet  ratione  cujus  quidem  persuasionis  et  instigationis  prced' 
Nick'  postea,  scil.  16  Januarii  anno  supradicto  apud  T.  in  com'  N". 
prced*  nesciens  prcsdictum  potum  cum  veneiio  m  forma  prcedicV  fore 
mixt',  sed  fidem  adhibejxs  prcedict'  persuasioni  dicti  Willielmi  recepit 
et  bibit,  per  quod  prcedictus  Ntcholaus  immediate  post  receptionetn 
veneni  prcedicti  per  tres  horas  im.mediate  sequent'  langriebat,  et  postea 
prcecV  16  Jan.  anno  supradict'  ex  venenatione  et  intoxicat'  prced"  apud 
T.  prced'  obiit:  et  sic  prced'  Will'  Vaux  felonicl  et  ex  malitia  sua 
prcecogitata  prcefat'  Nich'  voluntarie  etfelonice  modo  etfoi-ma  prced' 
iiituxicavit,  interfecit,  et  murdravii,  contra  paccm,  ttc.     Upon  which 


68  VAUx's  CASE.  [chap.  IV. 

indictment  the  said  Vaux  -was  arraigned  before  the  same  Justices,  and 
pleaded  not  guilty ;  and  the  jurors  gave  a  special  verdict,  and  found, 
quod prced'  Nich'  Ridley  venenatus  fuit  Ajiglice  poisoned,  per  recep- 
tionem  prced  ccmtharides,  et  quod j^trced'  Will'  Vattx  non  fait  j^raseiis 
tempore  quo  jvced'  Nich'  Ridley  recejnt  prced'  cantJi'  sed  utrum,  ct'C. 
And  thereupon  judgment  was  given  b}-  the  said  justices  of  assise  in  this 
manner  :  siqjer  quo  visis,  et  per  cur'  hie  intellectis  omnibus  et  singidis 
'prceitiissis,  pro  eo  quod  videtur  cur'  hie  siq^er  tola  materia  per  vere- 
dictum  prced  in  forma  prmd^  compert\  quod  prcPAV  venenatio  per  re- 
ception' canth'  et  j^rced"  procuratio  prced'  Will'  ad  procurand'  pr(B(T 
Nich'  ad  accijnet^d'  prmd'  canth'  modo  et  forma  prout  per  verdicf 
proed'  comperf  fuit  non  fuit  felonia  et  murdruin  voluntar^ :  ideo  con- 
siderat'  est  quod  prmd''  WilV  Vaux,  de  felonia  et  murdro  prmd  indicta- 
m^ento  prced'  superius  specificat'  necnon  de  dicta  felonica  venenatione 
prced  Nich'  Ridley  in  eodem  indictamento  ?wminati  eidem,  Will'  im- 
posiV  eat  sine  die  :  and  as  to  the  felon}-  and  murder  he  pleaded  not 
guilt}'. 

And,  first,  it  was  resolved  2:>er  totam  curiam  that  the  said  indict- 
ment upon  which  Vaux  was  so  arraigned  was  insufficient ;  and  princi- 
pally because  it  is  not  expressly  alleged  in  the  indictment  that  the  said 
Ridley  received  and  drank  the  said  poison,  for  the  indictment  is,  ^^rcecZ' 
JSficK  nescieyis  prced'  potunx  cum  veneno  fore  intoxicatum,  sed  fidem 
adhihens  diet'  2)ersi(asioni  dlcti  W.  recepit  et  bibit,  per  quod,  &c.  So 
that  it  doth  not  appear  what  thing  he  drank,  for  these  words  {venenum 
prced')  are  wanting  ;  and  the  subsequent  words,  scilicet  per  quod  pr  (edict' 
N.  immediate  post  receptioyiem  veneiii  prcedict'  &c.,  which  words  impl}' 
receipt  of  poison,  are  not  sufficient  to  maintain  the  indictment,  for  the 
matter  of  the  indictment  ought  to  be  full,  express,  and  certain,  and  shall 
not  be  maintained  by  argument  or  implication,  because  the  indictment 
is  found  by  the  oath  of  laymen.  2.  It  was  agreed  per  curiam  that 
Vaux  was  a  principal  murderer,  although  he  was  not  present  at  the 
time  of  the  receipt  of  the  poison,  for  otherwise  he  would  be  guilty  of 
such  horrible  offence,  and  yet  should  be  unpunished,  which  would  be 
inconvenient  and  mischievous :  for  every  felon  is  either  principal  or 
accessory,  and  if  there  is  no  principal  there  can  be  no  accessory,  quia 
accessorium  sequitur  princ{p>alem  ;  and  if  any  had  procured  Vaux  to 
do  it,  he  had  been  accessory  before ;  quod  nota  a  special  case,  where 
the  principal  and  accessory  also  shall  both  be  absent  at  the  time  of  the 
felony  committed.  3.  It  was  resolved  by  the  Lord  Wray,  Sir  Thomas 
Gawdy,  Clench,  and  Fenner,  Justices,  that  the  reason  of  auterfoits 
acquit  was  because  where  the  maxim  of  common  law  is  that  the  life  of 
a  man  shall  not  be  twice  put  in  jeopardy  for  one  and  the  same  offence, 
and  that  is  the  reason  and  cause  that  auterfoits  acquitted  or  convicted 
of  the  same  offence  is  a  good  plea ;  yet  it  is  intendable  of  a  lawful 
acquittal  or  conviction,  for  if  the  conviction  or  acquittal  is  not  lawful, 
his  life  was  never  in  jeopardy  ;  and  because  the  indictment  in  this  case 
was  insufficient,  for  this  reason  he  was  not  legitime  modo  acquietatus, 


ijECT.  I.]  REGINA   V.    DEANE.  69 

and  that  is  well  proved,  because  upon  such  acquittal  he  shall  not  have 
i\.\\  action  of  conspiracy,  as  it  is  agreed  in  9  E.  4. 12  a.  b.  vide  20  E.  4,  6. 
And  in  such  case  in  a[)peal,  notwithstanding  such  insufficient  indict- 
ment, the  abettor  shall  be  cmiuired  of  as  it  is  there  also  hold  :  and 
although  the  judgment  is  given  that  he  shall  be  acquitted  of  the  felony, 
yet  this  acquittal  shall  not  help  him,  because  he  was  not  Icgitimo  modo 
acqxiietatus  ;  and  when  the  law  saith  that  auterfoits  acquitted  is  a  good 
plea,  it  shall  be  intended  when  he  is  lawfully  acquitted  ;  and  that  agrees 
with  tlie  old  book  in  29  E.  3,  Corone  444,  where  it  is  agreed  if  the  pro- 
cess upon  indictment  or  appeal  is  not  sufficient,  yet  if  the  party  appears 
(by  which  all  imperfections  of  the  process  are  saved)  and  is  acquitted, 
he  shall  be  discharged  ;  and  if  the  appeal  or  indictment  is  insufficient 
(as  our  case  is)  there  it  is  otherwise  :  but  if  one,  upon  an  insulHcient 
indictment  of  felony,  has  judgment,  quod  suspend'  iter  coll\  and  so  at- 
tainted, which  is  the  judgment  and  end  which  the  law  has  appointed 
for  the  felony,  there  he  cannot  be  again  indicted  and  arraigned  until 
this  judgment  is  reversed  by  error  ;  but  when  the  offender  is  discharged 
upon  an  insufficient  indictment,  there  the  law  has  not  had  its  end  ;  nor 
was  the  life  of  the  party,  in  the  judgment  of  the  law,  ever  in  jeopardy  ; 
and  the  wisdom  of  the  law  abhors  that  great  offences  should  go  un- 
punished, which  was  grounded  without  question  upon  these  ancient 
maxims  of  law  and  state ;  maleficia  non  debetit  remanere  impunita,  et 
impunitas  continuum  affectum  tribuit  delinquendi,  et  minatur  inno- 
centes  qui  pare  it  nocentibus :  so  if  a  man  be  convicted  either  by  verdict 
or  confession  upon  an  insufficient  indictment,  and  no  judgment  there- 
upon given,  he  may  be  again  indicted  and  arraigned,  because  his  life 
was  never  in  jeopardy,  and  the  law  wants  its  end ;  and  afterwards, 
upon  a  now  indictment,  the  said  Vaux  was  tried  and  found  guilty,  and 
had  his  judgment  and  was  hanged. 


REGINA  y.  DEANE. 
Liverpool  Winter  Assizes.     1851. 

[Reported  h  Cox  C.  C.  501.] 

The  prisoner  was  indicted  for  forging  the  acceptance  to  a  bill  of  ex- 
change for  £154  16s.  Zd. 

The  jury  had  been  sworn  and  charged  to  inquire  into  the  guilt  of  the 
prisoner. 

Simon^  for  the  prosecutor,  had  opened  the  case,  when 

3fonk,  for  the  prisoner,  having  come  into  court  during  the  opening 
of  the  learned  counsel  for  the  prosecution,  informed  his  lordship  that 
the  prisoner  was  not  prepared  with  his  defence  ;  uix)n  which 

Eni.E,  J.,  discharged  the  jury  from  giving  a  verdict,  observing  that, 
with  the  consent  of  both  parties,  there  was  power  to  do  so ;  and  such 


70  COMMONWEALTH   V.    GREEN.  [CHAP.  IV. 

consent  being  then  given,  the  trial  was  accordingl}'  postponed  to  the 
following  day.  His  lordship  added  that  Mr.  Barou  Parke  held  the  same 
opiuion. 


COMMONWEALTH  v.  ALDERMAN. 
Supreme  Judicial  Court  of  Massachusetts.     1808. 

[Reported  4  Mass.  477.] 

The  defendant  being  arraigned  on  an  indictment  for  an  assault  and 
battev\-,  and  being  enquired  of  b}'  the  clerk  whether  he  was  guilt}-  or 
not  guilty,  said  that  he  was  guilt}',  but  added  that  he  had  himself  in- 
formed a  justice  of  the  peace  for  the  county  of  his  offence,  by  whom  he 
had  been  sentenced  to  pa}'  a  fine,  &c. 

The  Court  directed  the  clerk  to  enter  the  plea  of  guilty  alone,  observ- 
ing that  it  had  heretofore  been  solemnly  determined  that  a  conviction  of 
a  breach  of  the  peace  before  a  magistrate,  on  the  confession  or  infor- 
mation of  the  offender  himself  was  no  bar  to  an  indictment  by  the  grand 
jury  for  the  same  offence.* 


COMMONWEALTH   v.  GREEN. 
Supreme  Judicial  Court  of  Massachusetts.     1822. 

[Reported  17  Mass.  515.] 

Parker,  C.  J.^  The  prisoner,  having  been  convicted  by  the  verdict 
of  a  jury  of  the  crime  of  murder  at  the  last  term  of  the  court,  moved 
for  a  new  trial ;  because,  as  alleged  in  his  motion,  one  Sylvester  Stod- 
dard, who  had  been  sworn  as  a  witness  on  the  part  of  government,  and 
who  had  testified  to  the  jury,  had  been  convicted  of  the  crime  of  larceny, 
in  a  court  having  jurisdiction  of  the  offence  within  the  State  of  New 
York;  whereby,  as  is  alleged,  he  was  rendered  infamous,  and  for  that 
reason  his  testimony  could  not  be  received  in  a  court  of  justice  in  this 
commonwealth.  A  copy  of  the  record  of  that  conviction  has  been  pro- 
duced in  support  of  tlie  motion  ;  and  suflficient  evidence  has  been  given 
to  satisfy  tlie  court,  for  the  purpose  of  sustaining  this  motion,  that  the 
Svlvester  Stoddard,  who  was  sworn  and  examined  on  the  trial  of  the 
prisoner,  was  the  subject  of  that  conviction.  It  appeared  also  that 
judgment  was  rendered  upon  that  conviction,  and  was  executed  upon 
the  convict,  within  the  public  prison  of  the  State  of  New  York. 

It  has  been  argued  by  the  attorney  and  solicitor-general  that  by  law 

1  "  A  like  decision  was  made  in  Low's  case,  about  a.  d.  178.3.  In  neither  case  was 
there  any  notice  to  the  party  injured."     6  Dane  Abr.  732.  —  Ed. 

2  Part  of  the  opinion  only  is  given. 


SECT.  I.]  COMMONWEALTH   V.   GREEN.  71 

a  new  trial  cannot  be  granted  of  a  capital  felony  ;  and  it  appears  by 
the  English  text-books,  and  by  several  decisions  cited  in  snpi)ort  of  the 
position,  that  in  cases  of  felony,  a  new  trial  is  not  usually  allowed  by 
the  courts  of  that  country.  But  whatever  reasons  may  exist  in  that 
country  for  this  practice,  we  are  unable  to  discern  any  sufficient  ground 
for  adopting  it  here. 

That  a  prisoner,  who  has  been  tried  for  a  felony,  and  acquitted,  should 
not  be  subjected  to  a  second  trial  for  the  same  offence,  seems  consis- 
tent with  the  humane  principles  of  the  common  law,  in  relation  to  those 
whose  lives  have  been  once  put  in  jeopardy.  But  the  same  humane 
principles  would  appear  to  require  that  after  a  conviction,  a  prisoner 
should  be  indulged  with  another  opportunity  to  save  his  life,  if  any- 
thing liad  occurred  upon  tlie  trial  which  rendered  doubtful  the  justice 
or  legality  of  his  conviction.  Nemo  bis  debet  vexari  jyro  tind  et  eddem 
causa  is  a  maxim  of  justice,  as  well  as  of  humanity  ;  and  was  estab- 
lished for  the  protection  of  the  subject  against  the  oppressions  of  gov- 
ernment. But  it  does  not  seem  a  legitimate  consequence  of  this  maxim 
that  one  who  has  been  illegally  convicted  should  be  prevented  from  hav- 
ing a  second  inquiry  into  his  otfence ;  that  he  may  be  acquitted,  if  the 
law  and  the  evidence  will  justify  an  acquittal. 

It  is  true  that,  in  England,  the  utmost  caution  is  used  on  capital  trials 
in  favor  of  life ;  and  if  an  irregularity  materially  affecting  the  trial 
occurs  to  the  injury  of  the  accused,  the  court  usually  represents  such 
matter  to  the  crown,  and  a  pardon  is  generally  granted.  But  it  is  the 
right  of  every  subject  of  that  country,  and  of  every  citizen  of  this,  to 
have  a  fair  and  legal  trial  before  his  peers,  the  jury ;  and  it  is  hardly 
consistent  with  that  right,  that  it  should  be  left  to  the  will  or  discretion 
of  the  judge  whether  a  representation  of  an  actual  irregularity  shall 
be  made  to  the  pardoning  power ;  or  to  the  discretion  of  the  latter, 
whether  that  power  shall  be  exercised  in  favor  of  a  person  unlawfully 
convicted. 

Where  the  error  appears  of  record,  in  either  country,  the  court  will 
arrest  the  judgment  after  a  verdict  of  guilty ;  and  the  party  may  be 
again  indicted  and  tried  for  the  same  offence.  If  the  error  does  not 
appear  of  record,  but  arises  from  inadvertency  of  the  judge,  in  reject- 
ing or  admitting  evidence,  or  from  misbehavior  of  the  jury,  or  other 
cause  which  would  be  good  ground  for  a  new  trial  in  civil  actions  or 
misdemeanors,  justice  and  consistency  of  principle  would  seem  to  de- 
mand that  the  person  convicted  should,  upon  his  own  motion,  have 
another  trial ;  instead  of  being  obliged  to  rely  upon  the  disposition  of 
the  court  to  recommend  a  pardon,  or  of  the  executive  power  to  grant 
it.  It  is  not  enough,  that  the  life  of  the  accused  will  generally  l>e  safe 
in  the  hands  of  such  highly  responsible  public  agents.  The  right  of 
the  subject  to  be  tried  by  his  peers,  according  to  the  forms,  as  well  as 
principles,  of  law,  is  the  only  certain  security  that  "  at  all  times  and 
nndcr  all  circumstances  "  that  protection  which  the  constitution  extends 
to  all  will  be  effectually  enjoyed. 


72  COMMONWEALTH   V.   LOUD.  [CHAP.  IV. 

Nor  is  it  for  the  public  safety  and  interest  tliat  new  trials  should  be 
refused  in  such  cases.  For  it  must  be  obvious  that  in  most  cases  of 
irregularity  which  would  be  a  good  cause  for  another  trial  if  in  the 
power  of  the  court  to  grant  it,  a  pardon,  upon  the  representation  of  the 
court,  would  be  thought  to  follow  of  course  ;  and  thus,  in  many  cases, 
public  justice  might  be  prevented  on  account  of  defect  in  form,  or  some 
irregularity  not  affecting  the  merits  of  the  case,  which  mischief  might 
be  avoided  by  another  trial. 

For  these  reasons  we  think  there  is  a  power  in  this  court  to  grant  a 
new  trial  on  the  motion  of  one  convicted  of  capital  offence,  sufficient 
cause  being  shown  therefor ;  notwithstanding  the  English  courts  are 
supposed  not  to  exercise  such  authority  ;  and  if  this  opinion  needs  sup- 
port, the  case  of  John  Fries,  who,  after  conviction  of  treason,  was  tried 
a  second  time,  and  the  case  in  South  Carolina,  cited  at  the  bar  from 
Bay's  reports,  are  sufficient  for  this  purpose.  In  the  case  of  the  United 
States  V.  Fries,  Mr.  Rawle,  the  district  attorney,  admitted  the  power  of 
the  court  to  grant  a  new  trial,  and  argued  only  against  the  propriety  of 
exercising  the  power  in  that  case.  Judge  Iredell  expressly  admitted 
the  power  ;  and  Judge  Peters,  who  was  against  a  new  trial,  although  he 
yielded  to  the  Circuit  Judge,  did  not  deny  the  authority  of  the  court 
to  grant  it.  In  a  late  case  also,  in  New  York,  The  Peo[)le  v.  Goodwin, 
which  was  a  case  of  felon}-,  it  was  decided  that  the  cause  might  be 
taken  from  the  jur}',  and  a  new  trial  ordered. 


COMMONWEALTH  v.  LOUD. 
Supreme  Jui>icial  Court  of  Massachusetts.     1841. 

[Reported  3  Met.  328.] 

The  defendant  was  tried  in  the  Court  of  Common  Pleas,  before 
Wakken,  J.,  on  an  indictment  found  at  April  term,  1841,  charging  him 
with  feloniously  stealing,  &c.,  certain  lumber.  After  the  testimonj' 
against  him  had  been  introduced,  and  the  judge  had  instructed  the  jury 
that  the  testimony,  if  believed  by  them,  proved  a  larceny,  the  defendant 
proposed  to  prove  a  prior  conviction  of  the  same  offence,  as  a  bar  to 
this  indictment ;  and  offered,  for  that  purpose,  a  record  of  certain  pro- 
ceedings before  a  justice  of  the  peace  in  and  for  this  county.  On 
inspecting  that  record,  it  appeared  that  L.  II.  Loud,  in  Januar}',  1841, 
Ijresented  a  complaint  to  said  Justice,  in  which  he  alleged  that  on  the 
10th  of  August,  1840,  certain  lumber  (admitted  to  be  the  same  that 
was  described  in  the  indictment)  was  feloniously  taken,  stolen,  and  car- 
ried away,  and  that  the  complainant  had  probalile  cause  to  suspect,  and 
did  suspect,  that  the  defendant  did  feloniously  take,  steal  and  carry 
awav  the  same  ;  that  the  said  justice  thereupon  issued  a  warrant  against 


SKCT.  I.]  COMMONWEALTH   V.   LOUD.  73 

the  defendant,  on  which  the  defendant  was  carried  before  the  justice 
and  arraigned  ;  that  the  defendant  pleaded  that  he  was  not  guilty,  and 
that  after  a  full  hearing  the  justice  found  him  guilty,  and  iinijosed  on 
him  a  fine  of  ten  dollars  with  costs  of  prosecution. 

It  was  proved  or  admitted  that  the  defendant  paid  the  said  fine  and 
costs. 

The  judge  ruled  that  said  proceedings  did  not  constitute  a  bar  to 
this  prosecution,  and  the  jury  found  the  defendant  guilty.  To  this 
ruling  the  defendant  excepted. 

Ilallett  &  Kingsburij,  for  the  defendant. 

Austm,  Attornej-'General,  for  the  Commonwealth. 

Putnam,  J.  This  case  comes  before  us  on  exceptions  to  the  ruling 
of  the  Court  of  Common  Pleas,  and  we  decide  it  on  the  last  which  ap- 
pears to  be  made,  namely,  that  the  defendant  offered  to  prove  the  record 
and  proceedings  of  a  prior  conviction  for  the  same  offence,  before  a 
justice  of  the  peace,  as  a  bar,  but  that  the  court  ruled  that  the  same 
did  not  constitute  a  bar  to  this  prosecution.  And  the  attorney -general 
admits  that  this  case  is  to  be  taken  and  considered  by  the  court  as  if 
that  plea  had  been  formally  made  with  proper  averments ;  tliat  the 
larcen}'  of  which  the  defendant  was  convicted  was  of  the  same  pro- 
perty for  the  stealing  of  which  he  has  been  again  indicted  and  con- 
victed ;  and  that  the  defendant  submitted  to  the  former  judgment,  and 
performed  the  sentence.  But  it  is  contended  for  the  Commonwealth, 
that  the  supposed  former  conviction  was  not  only  erroneous,  but  was 
merel}'  void. 

In  the  case  of  Commonwealth  v.  Phillips,  16  Pick.  211,  it  was  held 
that  a  conviction,  on  a  complaint  in  similar  form  to  that  which  was 
used  in  the  case  at  bar,  was  erroneous  ;  and  the  judgment  was  arrested. 
The  defendant  excepted  to  that  judgment,  as  he  well  might.  But 
in  the  case  at  bar,  the  defendant  waived  any  exception  to  the  judg- 
ment, complaint,  proceedings,  or  sentence ;  and  he  has  performed  the 
sentence. 

The  Commonwealth  now  desire  to  have  those  proceedings  held  for 
nothing,  so  that,  by  an  indictment  in  technical  and  legal  form,  the  de- 
fendant may  be  again  tried  and  punished  for  the  same  offence  of  which 
he  has  been  informally  convicted.  We  cannot  think  that  those  proceed- 
ings before  the  magistrate  were  merely  void.  On  the  contrary,  it  is 
reasonable  to  believe  that  the  complainant  intended  to  prosecute  for  a 
larceny.  The  defendant  understood  it  so,  and  so  did  the  magistrate. 
Now  the  judgment  that  the  defendant  was  guilty,  although  upon  pro- 
ceedings which  were  erroneous,  is  good  until  the  same  be  reversed. 
This  rule  of  criminal  law  is  well  settled.  It  was  the  right  and  privi- 
lege of  the  defendant  to  bring  a  writ  of  error,  and  reverse  that  judg- 
ment ;  which  writ  would  have  been  sustained  b}'  the  case  before  cited 
of  Commonwealth  r.  Phillips ;  but  he  might  well  waive  the  error  and 
sub/nit  to  and  perform  the  judgment  and  sentence,  without  danger  of 
being  subjected  to  another  conviction  and  punishment  for  the  same 


74  BRENNAN   V.   THE   PEOPLE,  [CHAP.  I"V, 

offence.    Vaux's  case,  4  Co.  45  ;  2  Hale  P.  C.  251  ;  2  Hawk.  c.  36,  §  10, 
et  seq.  ;  1  Stark.  Crim.  PI.  (2d  ed.)  329,  330. 

The  evidence  which  was  offered,  we  think,  constituted  a  good  defence 
to  the  indictment.  The  bill  of  exceptions  is  sustained.  Therefore  the 
verdict  should  be  set  aside,  and  the  defendant  should  go  thereof  dis- 
charged, without  day.^ 


BRENNAN  u.  THE  PEOPLE. 

Supreme  Coukt  of  Illinois.     1854. 

[Reported  15  Illinois,  511.] 

The  facts  of  this  case  are  stated  in  the  opinion  of  the  court.  This 
cause  was  tried  at  Ma}'  term,  1854,  of  the  Kane  Circuit  Court,  J.  G. 
Wilson,  presiding. 

Iloyne^  Plato^  &  Farnsworth^  for  plaintiffs  in  error. 
Wallace  &  Blackicell,  for  the  people. 

Treat,  C.  J.''  An  indictment  for  the  murder  of  Albert  Story  was 
found  against  Kern  Brennan,  James  Tewey,  Michael  Tewe}-,  Martin 
RN'an,  and  eight  other  persons,  at  the  November  term,  1853,  of  the  La 
Salle  Circuit  Court.  The  defendants  were  arraigned  during  the  same 
term,  and  pleaded  not  guilty  to  the  indictment.  The  prisoners  were 
then  put  upon  their  trial.  The  jury  found  Kern  Brennan,  James  Tewey, 
and  Michael  Tewey  guilty  of  the  murder  of  Story.  They  also  found 
Martin  Ryan  guilty  of  manslaughter,  and  fixed  the  period  of  his  im- 
prisonment in  the  penitentiary  at  eight  ^-ears.  The  record  then  recites  : 
"Thereupon  come  the  defendants,  and  move  for  a  new  trial  herein; 
and  the  court  being  advised,  sustains  the  motion,  and  grants  a  new 
trial."  The  same  defendants  were  again  put  upon  their  trial  for  the 
murder  of  Story,  at  the  May  term,  1854.  The  jury  found  the  four 
prisoners  guilty  of  murder,  and  sentence  of  death  was  passed  upon 
them. 

Was  the  prisoner,  Ryan,  properly  put  upon  his  trial  a  second  time 
for  the  murder  of  Story?  An  indictment  for  murder  embraces  the 
charge  of  manslaughter.  The  lesser  is  included  in  the  greater  accusa- 
tion. On  such  an  indictment,  tiie  jury  may  find  the  prisoner  guilty  of 
manslaughter.  And  such  a  finding  amounts  to  an  acquittal  of  the 
charge  of  murder.  The  finding  of  the  inferior  is  necessarily  a  discharge 
of  the  superior  offence.  Ryan  was  regularly  put  upon  his  trial  on  the 
indictment,  and  was  found  guilty  of  manslaughter.  In  contemplation 
of  law,  the  jury  rendered  two  verdicts  as  to  him  ;  one  acquitting  him  of 
the  murder  of  Story  ;  the  other  convicting  him  of  the  manslaughter  of 

1  But  see  People  v.  Barrett,  1  Johns.  66. 

2  Only  so  much  of  the  case  as  involves  the  question  of  double  jeopardy  is  given. 


SECT.  I.]  BRENNAN    V.   TlIK   PEOrLE.  75 

Story.  He  was  thus  legally  tried  for  the  oflencc  of  murder  and  ac- 
quitted. It  is  perfectly  clear  that  he  could  not  again  be  put  in  jeopard}- 
on  the  same  charge,  unless  that  acciuittal  was  set  aside  at  his  instance. 
A  verdict  either  of  acquittal  or  conviction  is  a  bar  to  a  subsequent 
prosecution  for  the  same  olfence,  although  no  judgment  has  been  en- 
tered upon  it.  Mount  v.  The  State,  1-i  Ohio,  295  ;  The  State  v.  Nor- 
vell,  2  Yerger,  24  ;  Hunt  v.  The  State,  25  Miss.  378.  It  does  not 
appear  from  tlie  record  that  Ryan  has  ever  waived  the  benefit  of  the 
verdict  of  acquittal.  It  is  true  that  he  united  with  the  other  prisoners 
in  asking  for  a  new  trial,  but  that  application  as  to  him  must  be  re- 
garded as  extending  only  to  the  charge  upon  which  he  was  convicted, 
lie  had  no  occasion  for  another  trial,  except  as  to  the  charge  of  man- 
slaughter. Being  legally  acquitted  of  the  charge  of  murder,  he  surely 
did  not  desire  that  to  be  again  investigated.  It  is  not  to  be  presumed 
that  he  would  voluntarily  place  himself  in  peril  upon  a  charge,  on  which 
he  had  already-  been  tried  and  acquitted.  Even  if  the  court,  upon  his 
motion,  could  open  the  whole  case,  the  record  does  not  show  that  such 
a  power  was  either  invoked  or  exercised.  The  application  for  a  new 
trial  did  not  necessaril}'  relate  to  the  charge  upon  which  he  was  ac- 
quitted. It  naturall}'  referred  to  the  charge  on  which  he  was  convicted. 
Nor  did  the  court,  in  terms,  set  aside  the  entire  finding  of  the  jury.  It 
simply  granted  the  prisoners  a  new  trial.  The  order  was  no  broader 
than  the  application.  There  were  two  distinct  findings  as  to  Ryan, 
and,  therefore,  there  was  not  the  least  necessity  for  disturbing  the  one 
acquitting  him  of  murder.  The  one  might  be  set  aside,  and  the  other 
be  allowed  to  stand.  The  verdict  was  not  an  entire  thing,  which  should 
wholly  stand  or  fall.  This  view  gives  full  effect  to  the  order  of  the 
court.  There  was  still  a  charge  upon  which  R3'an  could  be  again  tried. 
This  view  of  the  question  is  sustained  b}'  adjudged  cases.  The  case  of 
Campbell  v.  The  State,  9  Yerger,  333,  is  strongly  in  point.  The 
prisoner  was  tried  upon  an  indictment  containing  three  counts.  He 
was  acquitted  on  the  first  and  third  counts,  and  convicted  on  the 
second.  He  entered  a  motion  for  a  new  trial,  and  the  court,  in  sus- 
taining it,  set  aside  the  entire  finding  of  the  jury.  On  the  second  trial, 
he  objected  to  being  tried  on  the  counts  upon  which  he  had  been  ac- 
quitted ;  but  the  court  ordered  him  to  be  tried  on  the  whole  indictment. 
On  this  trial,  he  was  acquitted  on  the  first  and  .second  counts,  and  con- 
victed on  the  third.  On  error,  it  was  held  that  he  was  entitled  to 
judgment  of  acquittal  upon  the  first  and  third  counts,  because  as  to 
tliem  he  was  legally  discharged  on  the  first  trial ;  and  that  he  was 
entitled  to  the  same  judgment  on  the  second  count,  because  as  to  that 
lie  was  acquitted  upon  the  second  trial.  The  court  remarked:  "  It  is 
not  necessar}-  to  determine  how  far  a  part}*  could  be  held,  even  to  an 
express  waiver  of  the  benefit  of  a  verdict  of  acquittal.  It  is  enough, 
that  in  this  case  he  has  not  done  so.  He  moved  for  a  new  trial.  We 
are  not  to  suppose  his  application  was  more  extensive  than  his  necessi- 
ties.    As  he  had  been  acquitted  upon  two  counts,  he  couUl  have  no 


76  SIMMONS   V.    UNITED   STATES.  [cilAP.  IV. 

motive  to  ask  for  another  trial,  except  upon  the  one  on  which  he  was 
fuiiud  guilty  ;  and  we  are  not  to  understand  his  application  as  going 
furtlier.  But  the  record  shows  that  the  judge,  in  granting  a  new  trial, 
set  aside  the  verdict.  This  was  error ;  it  improperly  revived  the  pro- 
ceedings upon  those  counts  upon  which  he  was  acquitted.  But  although 
they  were  improperly  revived,  it  was  error  to  try  the  defendant  a 
second  time  upon  them.  Having  been  once  tried  upon  all  the  counts 
and  acquitted  of  some  of  them,  to  try  him  again  upon  the  same  counts 
would  be  putting  him  in  jeopardy  a  second  time  for  the  same  charge." 
The  same  doctrine  is  recognized  in  the  cases  of  Slaughter  v.  The  State, 
G  Humph.  410 ;  Morris  v.  The  State,  8  S.  &  M.  762  ;  and  Hunt  v.  The 
State,  25  Miss.  378. 

In  the  opinion  of  the  court,  Ryan  was  improperly'  tried  a  second  time 
for  the  murder  of  Story.  He  had  previously  been  tried  for  that  offence, 
and  his  innocence  legally  established.  The  verdict  of  acquittal  re- 
mained in  full  force ;  and  he  could  not  again  be  put  in  jeopardy  on  the 
same  charge,  without  the  violation  of  an  express  provision  of  the 
constitution. 

The  judgment  as  to  Ryan  must  be  reversed,  and  the  cause  will  be 
remanded.  He  may  still  be  put  upon  his  trial  on  the  charge  of  man- 
slaughter. As  respects  the  other  prisoners,  the  judgment  must  be 
affirmed.  Judgment  affirmed} 


SIMMONS  V.  UNITED   STATES. 
Supreme  Court  of  the  United  States.     1891. 

[Reported  142   U.  S.  148.] 

Gray,  J.**  The  general  rule  of  law  upon  the  power  of  the  court  to 
discharge  the  jury  in  a  criminal  case  before  verdict,  was  laid  down  by 
this  court  more  than  sixty  years  ago,  in  a  case  presenting  the  question 
whether  a  man  charged  with  a  capital  crime  was  entitled  to  be  dis- 
chai-ged  because  the  jury,  being  unable  to  agree,  had  been  discharged, 
without  his  consent,  from  giving  any  verdict  upon  the  indictment.  The 
court,  speaking  by  Mr.  Justice  Story,  said  :  "  We  are  of  opinion  that 
the  facts  constitute  no  legal  bar  to  a  future  trial.  The  prisoner  has 
not  been  convicted  or  acquitted,  and  may  again  be  put  upon  his  de- 
fence. We  think  that,  in  all  cases  of  this  nature,  the  law  has  invested 
courts  of  justice  with  the  authority  to  discharge  a  jury  from  giving  any 
verdict,  whenever  in  their  opinion,  taking  all  the  circumstances  into 
consideration,  there  is  a  manifest  necessity  for  the  act,  or  the  ends  of 
public  justice  would  otherwise  be  defeated.  They  are  to  exercise  a 
sound  discretion  on  the  subject ;  and  it  is  impossible  to  define  all  the 

1  See  State  v.  Belden,  33  Wis.  120.     Contra,  State  v.  Behimer,  20  Ohio  St.  572. 

2  Part  of  the  opinion  only  is  given ;  it  states  the  case. 


SECT.  I.]  SIMMONS  V.   UNITED   STATES.  77 

circumstances  which  would  render  it  proper  to  interfere.  To  be  sure, 
the  power  ouglit  to  be  used  with  the  greatest  caution,  under  urgent 
circumstances,  and  for  ver}-  phiin  and  obvious  causes  ;  and,  in  capital 
cases  cspeciall}',  courts  slioidd  be  extremely  careful  how  they  interfere 
with  any  of  the  chances  of  life  in  favor  of  the  prisoner.  But,  after  all, 
the}-  have  the  right  to  order  the  discharge ;  and  the  securit}'  which  the 
public  have  for  tlie  faithful,  sound  and  conscientious  exercise  of  this 
discretion  rests,  in  this,  as  in  other  cases,  upon  the  responsil)ility  of 
the  judges,  under  their  oaths  of  oflice."  United  States  v.  Perez,  U 
Wheat.  579. 

A  recent  decision  of  the  Court  of  Queen's  Bench,  made  upon  a  full 
review  of  the  English  authorities,  and  affirmed  in  the  Exchequer  Cham- 
ber, is  to  the  same  effect.  Winsor  v.  The  Queen,  L.  R.  1  Q.  B.  289, 
390 ;  s.  c.  6  B.  &  S.  143,  and  7  B.  &  S.  490. 

There  can  be  no  condition  of  things  in  which  the  necessity  for  the 
exercise  of  this  power  is  more  manifest,  in  order  to  prevent  the  defeat 
of  the  ends  of  public  justice,  than  when  it  is  made  to  appear  to  the 
court  that,  either  by  reason  of  facts  existing  when  the  jurors  were 
sworn,  but  not  then  disclosed  or  known  to  the  court,  or  b}'  reason  of 
outside  influences  brought  to  bear  on  the  jury  pending  the  trial,  the 
jurors  or  an}'  of  them  are  subject  to  such  bias  or  prejudice  as  not  to 
stand  impartial  between  the  government  and  the  accused.  As  was  well 
said  by  Mr.  Justice  Curtis  in  a  case  ver}'  like  that  now  bcfoi'c  us,  "  It 
is  an  entire  mistake  to  confound  this  discretionary  authority  of  the 
court,  to  protect  one  part  of  the  tribunal  from  corruption  or  prejudice, 
with  the  right  of  challenge  allowed  to  a  part}'.  And  it  is,  at  least, 
equally  a  mistake  to  suppose  that,  in  a  court  of  justice,  either  party  can 
have  a  vested  right  to  a  corrupt  or  prejudiced  juror,  who  is  not  fit  to 
sit  in  judgment  in  the  case."  United  States  v.  Morris,  1  Curtis  C.  C. 
23,  37. 

Pending  the  first  trial  of  the  present  case,  there  was  brought  to  the 
notice  of  the  counsel  on  both  sides,  and  of  the  court,  evidence  on  oath 
tending  to  show  that  one  of  the  jurors  had  sworn  falsely  on  his  voir  dire 
that  he  had  no  acquaintance  with  the  defendant ;  and  it  was  undisputed 
that  a  letter,  since  written  and  published  in  the  newspapers  by  the 
defendant's  counsel,  commenting  upon  that  evidence,  had  been  read  by 
that  juror  and  by  others  of  the  jury.  It  needs  no  argument  to  prove 
that  the  judge,  upon  receiving  such  information,  was  fully  justified  in 
concluding  that  such  a  publication,  under  the  peculiar  circumstances 
attending  it,  made  it  impossible  for  that  jury,  in  considering  the  case, 
to  act  with  the  independence  and  freedom  on  the  part  of  each  juror 
requisite  to  a  fair  trial  of  the  issue  between  the  parties.  The  judge 
having  come  to  that  conclusion,  it  was  clearly  within  his  authority  to 
order  the  jury  to  be  discharged,  and  to  put  the  defendant  on  trial  by 
another  jury  ;  and  the  defendant  was  not  thereby  twice  put  in  jeopardy, 
within  the  meaning  of  the  Fifth  Amendment  to  the  Constitution  of  the 
United  States. 


7S  VAlfDERCOMB'S   CASE.  [CHAP.  IV 

SECTION    n. 

Identity  of  Offences. 

VANDERCOMB'S    CASE. 
Crown  Case  Reserved.     1796. 

[Reported  2  Leach  (Ath  ed.)  708.] 

Mr.  Justice  Buller,  in  June  Session,  1796,  after  stating  the  plead- 
ings, delivered  the  opinion  of  the  Judges  upon  this  case.^  This  is  a 
demurrer  to  a  special  plea  of  autrefois  acquit  in  bar  of  an  indictment 
for  a  burglary  with  intent  to  commit  a  felon}'.  The  question  raised  b}' 
this  demurrer  has  been  argued  before  all  the  Judges  of  England.  On 
that  argument  it  was  contended  on  behalf  of  the  prisoners,  that  as  the 
dwelling-house  in  which,  and  the  time  when,  the  burglary  is  charged  to 
have  been  committed  are  precisel}'  the  same  both  in  the  indictment  for 
the  burglary  and  stealing  the  goods,  on  which  the  prisoners  were  ac- 
quitted ;  and  in  the  indictment  for  the  burglar}'  with  intent  to  steal  the 
goods,  which  is  now  depending,  the  offence  charged  in  both  is  in  con- 
templation of  law  the  same  offence,  and  that  of  course  the  acquittal  on 
the  former  indictment  is  a  bar  to  all  further  proceeding  on  the  latter. 
To  support  this  proposition  two  cases  in  Kelyng's  Reports  were  relied 
on.  It  is  quite  clear  that  at  the  time  the  felony  was  committed  there 
was  only  one  act  done,  namel}',  the  breaking  the  dwelling-house.  But 
this  fact  alone  will  not  decide  this  case ;  for  burglary  is  of  two  sorts : 
first,  breaking  and  entering  a  dwelling-house  in  the  night  time,  and 
stealing  goods  therein  ;  secondly,  breaking  and  entering  a  dwelling- 
house  in  the  night  time,  with  intent  to  commit  a  felony,  although  the 
meditated  felony  be  not  in  fact  committed.  The  circumstance  of 
breaking  and  entering  the  house  is  common  and  essential  to  both  the 
species  of  this  offence  ;  but  it  does  not  of  itself  constitute  the  crime  in 
either  of  them  ;  for  it  is  necessary  to  the  completion  of  burglary  that 
there  should  not  only  be  a  breaking  and  entering,  but  the  breaking  and 
entering  must  be  accompanied  with  a  felony  actually  committed  or 
intended  to  be  committed ;  and  these  two  offences  are  so  distinct  in 
their  nature,  that  evidence  of  one  of  them  will  not  support  an  indict- 
ment for  the  other.  In  the  present  case,  therefore,  evidence  of  the 
breaking  and  entering  with  intent  to  steal,  was  rightly  held  not  to  be 
sufficient  to  support  the  indictment,  charging  the  prisoner  with  having 
broke  and  entered  the  house,  and  stolen  the  goods  stated  in  the  first 
indictment ;  and  if  crimes  are  so  distinct  that  evidence  of  the  one  will 
not  support  the  other,  it  is  as  inconsistent  with  reason  as  it  is  repug- 

1  The  opinion  only  is  given ;  it  suflBciently  states  the  case. 


SECT.  II.]  REX  V.   PLANT.  79 

nant  to  the  rules  of  law  to  say  that  they  arc  so  far  the  same  that  an 
ac(iuittal  of  the  one  shall  be  a  bar  to  a  prosecution  for  tlie  other.' 

These  cases  establish  the  principle  that  unless  the  first  indictment 
were  such  as  the  prisoner  might  have  been  convicted  upon  by  proof  of 
the  facts  contained  in  the  second  indictment,  an  acquittal  on  the  first 
indictment  can  be  no  bar  to  the  second.  Now,  to  apply  the  principle 
of  these  cases  to  the  present  case :  The  first  indictment  was  for  burg- 
lariously breaking  and  entering  the  house  of  Miss  Neville  and  stealing 
tlie  goods  mentioned ;  but  it  appeared  that  the  prisoner  broke  and 
entered  the  house  with  intent  to  steal,  for  in  fact  no  larceny  was  com- 
mitted, and  therefore  they  could  not  be  convicted  on  that  indictment ; 
but  they  have  not  been  tried  for  burglariously  breaking  and  entering 
JMiss  Neville's  house  with  intent  to  steal,  which  is  the  charge  in  the 
present  indictment,  and  therefore  their  lives  have  never  been  in  jeopardy 
for  this  offence.  For  this  reason  the  Judges  are  all  of  opinion  that  the 
plea  is  bad  ;  that  there  must  be  judgment  for  the  prosecutor  upon  the 
demurrer ;  and  that  the  prisoners  must  take  their  trials  on  the  present 
indictment. 


REX  V.   PLANT. 

Chester  Assizes.     1836. 
[Reported  7  C.  Sf  P.  575.] 

Murder.  —  The  prisoners  were  tried  for  the  murder  of  Edward 
Plant,  a  child  of  the  female  prisoner,  by  poisoning  him.  In  some  of 
the  counts  of  the  indictment  both  prisoners  were  charged  as  joint  prin- 
cipals in  the  actual  murder :  and  in  others  Louisa  Plant  was  charged 
with  the  actual  murder,  the  other  prisoner  being  charged  as  present, 
aiding  and  abetting. 

It  appeared  that  the  two  prisoners  co-habited  together,  and  that 
both  went  towards  a  druggist's  shop,  when  he  gave  something  into  her 
hand,  and  she  went  into  the  shop  and  bought  the  poison  ;  and,  on  com- 
ing out,  gave  something  to  the  male  prisoner.  It  further  appeared 
that  the  female  prisoner,  about  a  fortnight  after  this,  took  the  deceased 
up  stairs  and  gave  him  the  poison,  the  male  prisoner  being  in  the  back- 
yard of  the  house  at  the  time. 

Upon  this  indictment  the  female  prisoner  was  convicted,  and  the 
male  prisoner  acquitted,  on  the  ground  that  he  was  not  present  with  the 
other  prisoner  at  the  time  of  the  murder,  and  that  he  was  on  this  evi- 
dence an  accessory  before  the  fact. 

*  His  Lordship  then  examined  the  following  authorities  :  Turner's  case,  Kelyng, 
30 ;  Jones  and  Bcver's  case,  Kelyng,  52 ;  2  Hawk.  P.  C.  c.  35,  sect.  3  ;  Foster  C.  L. 
361;  Rex  v.  I'edley,  1  Leach  (4th  ed.),  242. 


80  BEGIN  A  V.    CALVI.  [CHAP.  IV. 

The  prisoners  were  again  indicted  ;  the  female  prisoner  as  a  princi- 
pal in  the  murder,  and  the  male  prisoner  as  an  accessory  before  the 
fact.  To  this  indictment  the  prisoner  Birchenough  pleaded  his  acquittal 
on  the  former  indictment :  to  tliis  plea  there  was  a  demurrer. 

Cottinffham,  for  the  prisoner  Birchenough,  submitted,  that  a  person 
who  had  been  tried  as  a  principal  in  a  case  of  felony,  and  acquitted, 
could  not  be  tried  as  an  accessory  before  the  fact  to  the  same  felony, 
and  cited  1  Hale  P.  C.  626,  and  2  Hale  P.  C.  244. 

Lord  Denman,  C.  J.,  held  that  the  plea  of  former  acquittal  was  no 
bar  to  the  present  indictment,  and  that  the  prisoner  Birchenough  must 
take  his  trial ;  but  his  Lordship  reserved  the  point  for  the  consideration 
of  the  Judges. 

The  jury  on  this  indictment  found  both  the  prisoners  guilty. 


EEGINA  V.    CALVI. 
Central  Criminal  Court.     1857. 

[Reported  10  Cox  C.  C.  481  n.} 

Antonio  Calvi  was  indicted  for  the  wilful  murder  of  Robert  Hender- 
son Robertson. 
A  plea  of  autrefois  acquit  was  pleaded,  to  which  the  Crown  demurred.* 
Pollock,  C.  B.  —  We  are  of  opinion  that  this  is  not  a  good  plea. 
The  prisoner  is  now  indicted  for  murder,  and  murder  may  be  committed 
W'ithout  an}-  intent  to  kill.  If  a  man  intends  to  maim  and  causes  death, 
and  it  can  be  made  out  most  distinctly  that  he  did  not  mean  to  kill, 
3'et  if  he  does  acts  and  uses  means  for  the  purpose  of  accomplishing 
that  limited  object,  and  the}'  are  calculated  to  produce  death  and  death 
ensues,  by  the  law  of  England  that  is  murder,  although  the  man  did 
not  mean  to  kill.  On  the  former  occasion  the  prisoner  was  charged 
with  wounding  with  intent  to  kill.  The  jury  found  that  he  did  not 
intend  to  kill,  and  there  the  intention  was  of  the  essence  of  the  crime  ; 
that  is  not  so  in  the  present  indictment ;  it  is  not  necessary  here  to 
prove  an  intention  to  kill,  it  is  only  necessary  to  prove  an  intention 
to  inflict  an  injury  that  might  be  dangerous  to  life,  and  that  it  resulted 
in  death ;  that  is  sufficient  to  sustain  the  present  charge.  Try  this 
by  the  very  test  presented  to  us.  It  is  said  that  it  is  no  bar  to  the 
second  indictment  that  a  party  has  been  acquitted  on  the  first  unless 
the  facts  proved  on  the  second  indictment  might  have  produced  a 
conviction  on  the  first.  But  a  party  may  be  convicted  upon  an  indict- 
ment for  murder  by  evidence  that  would  have  no  tendency  to  prove 
that  there  was  any  intent  to  kill,  nay,  by  evidence  that  might  clearly 

^  Arguments  of  counsel  are  omitted. 


SECT. 


II.]  EEGINA   V.   CALVI.  81 


show  he  meant  to  stop  short  of  death,  and  even  took  some  moans 
to  prevent  death,  but  if  that  illegal  act  of  his  produces  death,  that 
js  murder.  Two  authorities  have  been  cited  with  reference  to  an 
acquittal  or  a  conviction  in  a  police  court :  one  of  them  was  a  case  be- 
fore Mr.  Justice  Coltman,  which  turned  entirely  upon  the  particular 
statute  (9  Geo.  4,  c  91,  s.  28) ;  and  as  to  the  case  in  5  Law  Chronicle, 
it  is  evident  that  that  proceeded  upon  some  statute  applicable  to  Scot- 
land, or  if  it  did  not,  I  entirely  dissent  from  the  doctrine  there  laid 
down.  The  only  suggestion  that  raised  for  a  moment  a  doubt  in  my 
mind  was  to  the  effect  that  an  acquittal  of  an  assault  with  intent  to  kill 
was  an  acquittal  both  of  the  assault  and  of  the  intent ;  but  I  think  that 
is  not  so.  The  acquittal  of  the  whole  offence  is  not  an  acquittal  of 
every  part  of  it,  it  is  only  an  acquittal  of  the  whole.  Therefore  the 
result  of  such  an  acquittal  would  only  be  that  the  acts  were  not  done 
with  intent  to  kill,  and  although  it  was  urged  that  under  a  recent  Act 
of  Parliament  it  was  competent  to  the  jury  on  the  previous  occasion  to 
convict  of  unlawfully  wounding,  I  am  not  sure  if  the  whole  record  bad 
been  before  us  that  that  would  have  presented  any  sort  of  answer.  But 
the  record  is  not  before  us ;  all  we  have  is  that  the  jury  acquitted  the 
party  of  the  wounding  with  intent  to  kill ;  that  is  the  only  thing  we  have 
to  deal  with.  It  appears  to  me,  therefore,  with  reference  to  all  the 
authorities  that  have  been  laid  before  us,  that  tlie  two  offences  are  not 
the  same,  that  the  plea  cannot  be  supported,  and  that  the  prisoner  must 
answer  over.  I  am  authorized  to  state  that  Mr.  Justice  Crompton,  and 
Mr.  Baron  Watson,  before  whom  the  case  came  at  the  last  Sessions, 
have  looked  into  the  matter,  and  concur  in  the  view  now  taken. 

Martin,  B.,  said  he  was  of  the  same  opinion.  After  alluding  to  the 
peculiar  form  of  the  plea  which  omitted  to  aver  the  identity  of  the 
crime  now  charged  with  that  of  which  the  prisoner  had  been  acquitted, 
and  which  omission  in  his  opinion  was  fatal  to  the  plea,  he  referred  to 
that  portion  of  the  argument  founded  upon  the  maxim  that  no  man 
could  be  tried  twice  for  one  and  the  same  crime.  That  maxim  pre- 
sented a  true  criterion  by  which  to  test  this  question.  Is  the  crime 
here  one  and  the  same?  Now  the  offence  for  which  the  prisoner  has 
been  tried  was  one  of  intent,  and  was  therefore  complete  the  moment 
the  stab  was  given,  whereas  the  offence  for  which  he  was  now  indicted 
could  only  be  consummated  by  the  death  of  the  party.  To  the  mind  of 
a  lawyer  this  must  be  deemed  conclusive  against  the  plea. 

WiLLES,  J.  —  In  order  to  support  this  plea  it  must  be  shown  that  the 
former  acquittal  was  an  acquittal  of  all  that  state  of  facts  which  might 
constitute  the  party  a  murderer.  Now  on  comparing  the  two  indict- 
ments it  was  clear  that  the  jury  had  not  so  acquitted  the  prisoner ;  all 
that  was  then  disposed  of  was  that  he  did  not  wound  with  intent  to  kill. 
It  could  not  be  assumed  that  the  jury  negatived  the  wounding;  there- 
fore, if  the  wounding,  coupled  with  circumstances  not  showing  an 
intention  to  kill,  might  constitute  murder,  the  prisoner  ought  now  to  be 
tried  for  that  offence,  and  that  this  might  be  the  case  was  clearly  shown 

6 


82  EEGINA   V.   MOKRIS.  [CHAP.  IV. 

by  the  fact  that  persons  inflicting  wounds  whilst  engaged  in  the  com- 
mission of  burglary  or  robber}-  without  an}-  intention  to  kill  would  be 
guilty  of  murder  where  death  ensued.  In  my  opinion,  the  same  matter 
was  not  again  in  discussion.  The  demurrer  must  be  allowed,  and  judg- 
ment given  for  the  Crown. 

The  prisoner  was  then  given  in  charge  both  upon  the  indictment  and 
inquisition  for  the  wilful  murder  of  Robert  Henderson  Robertson.  The 
jury  found  the  prisoner  guilty  of  manslaughter. 


REG  IN  A    V.   MORRIS. 
Crown  Case  Reserved.     1867. 

[Reported  10  Cox  C.  C.  480.] 

Case  reserved  for  the  opinion  of  this  court  by  Mr.  Baron  Pigott :  — 

Thomas  Morris  was  tried  before  me  at  the  Stafford  Spring  Assizes, 
upon  an  indictment  for  the  manslaughter  of  Timothy  Lymer,  by  inflict- 
ing bodily  injuries  on  him  on  the  25th  June. 

It  was  proved,  in  evidence,  that  the  prisoner  had  been  summoned 
before  the  magistrates  at  the  instance  of  the  said  Timothy  Lymer,  for 
the  assaults  which  caused  the  death,  and  was  convicted  and  sentenced 
to  imprisonment  with  hard  labor.     He  underwent  that  punishment. 

Timothy  Lymer  died  on  the  1st  of  September  from  the  injuries 
resulting  from  the  above-mentioned  assaults.  It  was  contended  under 
sect.  45  of  the  24  &  25  Vict.  c.  100,  that  the  conviction  for  the  assaults 
afforded  a  defence  to  the  present  indictment  for  manslaughter.  See  R. 
V.  Elrington,  9  Cox  Crim.  Cas.  86. 

There  was  a  substantial  question  raised  by  the  evidence,  whether  the 
manslaughter  was  the  result  of  injuries  inflicted  by  the  prisoner  Morris 
or  the  prisoner  Gibbons,  joined  in  the  present  indictment,  and  whether 
they  were  acting  in  concert. 

I  thought  it  desirable  to  let  the  prisoner  Morris  have  the  benefit  of 
either  of  the  defences,  and  for  that  purpose  to  let  the  questions  of  fact 
go  to  the  jury  upon  the  plea  of  not  guilty,  and  to  reserve  the  question 
of  law  under  the  aforesaid  sect.  45,  for  the  opinion  of  this  court. 

The  prisoner  Gibbons  was  acquitted,  and  the  prisoner  Morris  wag 
convicted. 

If  the  court  should  be  of  opinion  that  a  conviction  for  the  assault  at 
the  instance  of  the  injured  person,  under  sect.  45,  affords  a  defence  in 
law  to  an  indictment  for  manslaughter  resulting  from  that  assault,  then 
a  plea  of  not  guilty  to  be  entered  ;  otherwise  the  prisoner  Morris  to  be 
called  up  for  judgment  at  the  next  assizes.  G.  Pigott. 

G.  Browne,  for  the  prisoner.  —  The  conviction  cannot  be  sustained. 
The  prisoner  having  been  convicted  for  the  assault  upon  Ljmer,  and 


SECT.  II.]  KEGINA   V.   MOliRIS.  83 

undergone  the  imprisonment  to  which  he  was  sentenced  for  it,  was 
thereby  released  from  all  further  proceedings  in  respect  thereof,  though 
unfortunately  the  assault  has  resulted  in  the  death  of  Lymer.  The  24 
i&  25  Vict  0.  lOU,  s.  45,  enacts  that,  "■  If  any  person  against  wiioni  any 
such  complaint  as  in  either  of  the  last  three  preceding  sections  juen- 
tioned  shall  have  been  preferred  by  or  on  the  behalf  of  the  party 
aggrieved  shall  have  obtained  such  certificate,  or  having  been  convicted, 
shall  have  paid  the  whole  amount  adjudged  to  be  paid,  or  shall  have 
suffered  the  imprisonment,  or  imprisonment  with  hard  labor,  awarded, 
in  every  such  case  he  shall  be  released  from  all  further  or  other  pro- 
cee^lings,  civil  or  criminal,  for  the  same  cause."  This  enactment  is 
similar  to  one  in  the  repealed  statute  (9  Geo.  4,  c.  31,  s.  27),  upon 
which,  in  Keg.  v.  Walker,  2  Moo.  &  Kob.  446,  it  was  held  that  a  con- 
viction for  the  assault  before  justices  was  a  bar  to  an  indictment  for 
feloniousl}'  stabbing  in  respect  of  the  same  matter.  And  so  again  in 
Keg.  V.  P>lrington,  9  Cox  Crim.  Cas.  8G,  it  was  held  that  a  certificate 
of  justices  of  the  dismissal  of  a  complaint  for  an  assault  might  be 
pleaded  in  bar  to  an  indictment  founded  on  the  same  facts,  for  doing 
grievous  bodily  harm,  and  occasioning  actual  bodily  harm.  In  Reg.  r. 
Stanton,  5  Cox  Crim.  Cas.  324,  Erie,  C.  J.,  expressed  a  similar 
opinion.  He  also  referred  to  1  Hawk.  P.  C,  bk.  1,  c.  13,  s.  4. 
[Mautin,  B.,  referred  to  the  case  of  Keg.  v.  Salvi,  46  Central  Criminal 
Court  Sessions  Paper,  884.] 

No  counsel  appeared  for  the  prosecution.  Cur.  adv.  vult. 

Kelly,  C.  B.  —  In  this  case  I  have  the  misfortune  to  differ  with  my 
learned  brethren,  who  are  of  opinion  that  the  conviction  ought  to  be 
affirmed.  The  prisoner  was  charged  before  the  magistrates  with  an 
assault  under  the  24  &  25  Vict.  c.  100,  at  the  instance  of  the  party 
aggrieved,  and  now  deceased,  Timothy  Lymer ;  he  was  convicted  and 
sentenced  to  imprisonment  with  hard  labor,  and  has  undergone  that 
sentence.  The  assault,  the  unlawful  act,  with  which  he  was  charged, 
is  the  same  assault  and  one  and  the  same  act  as  that  which  caused  the 
death  of  Lymer,  and  of  which  he  has  been  convicted  under  the  present 
indictment.  I  think,  therefore,  that  the  case  comes  within  the  precise 
words  of  sect.  45  of  the  24  &  25  Vict.  c.  100,  which  provides  tliat  in 
such  a  case  "  he  shall  be  released  from  all  further  or  other  proceedings, 
civil  or  criminal,  for  the  same  cause."  It  is  true  that  the  offence  is 
now  charged  in  other  language  ;  that  which  before  the  magistrates  was 
described  as  an  assault,  is  now  described  as  manslaughter ;  l)ut  it  is 
one  and  the  same  act,  and  the  cause  of  the  prosecution  before  the 
magistrates,  and  the  cause  of  this  prosecution,  are  one  and  the  same 
cause.  The  case,  therefore,  comes  within  the  letter  as  well  as  the 
spirit  of  the  Act  of  Parliament,  and  I  think  that  to  sustain  the  convic- 
tion would  be  directl}'  to  violate  the  maxim  or  principle  of  the  law 
nemo  debet  bis  vexari  (here  we  might  say  puniri)  pro  eiidcrn  causa. 
Cases  may,  indeed,  be  suggested  in  which  there  might  be  a  failure  of 


84  EEGINA   V.   MORRIS.  fCHAP.  IV. 

justice,  as  where  an  assault  should  have  been  treated  lightly  by  a 
magistrate,  and  upon  conviction  a  light  sentence  passed,  and  yet 
from  the  subsequent  death  of  the  party  assaulted  the  offence  might 
amount  to  murder.  But  such  a  case  must  be  rare  and  exceptional, 
and  I  think  we  ought  to  presume  that  the  magistrates  will  in  all  cases 
under  this  or  any  other  Act  of  Parliament  do  their  duty.  And  as 
where  the  charge  is  made  at  the  instance  of  the  party  aggrieved,  it 
may  also  be  presumed  that  the  whole  of  the  evidence  would  be  fully 
brought  before  the  magistrates,  and,  upon  conviction,  an  adequate 
punishment  inflicted  accordingly,  I  do  not  think  that  it  was  the  inten- 
tion of  the  Legislature,  or  is  consistent  with  natural  justice,  that  the 
accident  of  the  subsequent  death  of  the  party  should  subject  the  accused 
to  a  repetition  of  the  trial  and  punishment.  Salvi's  case  is  clearly  dis- 
tinguishable. There  the  prisoner  was  indicted  for  the  murder  of  one 
Robertson,  and  pleaded  a  plea  of  autrefois  acquit,  the  acquittal  having 
been  on  an  indictment  for  wounding  with  intent  to  kill.  It  was  clear 
that  this  acquittal  might  have  been  pronounced  upon  the  ground  of  the 
jury  having  negatived  the  intent  to  kill,  and  yet  that  the  prisoner  might 
well  be  guilty  of  the  murder  without  an  intent  to  kill  the  individual 
murdered,  as  if  he  had  shot  at  another  man,  but  unintentionially  killed 
Robertson.  The  plea,  therefore,  of  autrefois  acquit  was  in  that  case 
properly  overruled.  Here,  however,  the  prisoner  has  been  tried,  con- 
victed, and  punished  for  the  very  same  offence  in  all  its  parts,  though 
under  another  name,  as  that  for  which  he  is  now  indicted,  and  again 
convicted,  and  it  seems  to  me  that  to  allow  this  conviction  to  stand  is 
to  punish  a  man  twice  for  the  same  cause,  in  violation  of  the  before- 
mentioned  maxim  and  of  the  express  language  of  the  Act  of  Parlia- 
ment.    I  think,  therefore,  that  the  conviction  ought  to  be  quashed. 

Martin,  B.  —  I  am  of  opinion  tliat  the  conviction  ought  to  be  sus- 
tained. The  facts  are  :  Thomas  Morris  was  convicted  of  an  assault  on 
Timothy  Lymer,  and  committed  to  prison  under  the  24  &  25  Vict.  c. 
100,  s.  42.  He  has  undergone  that  punishment,  and  Timothy  Lymer, 
the  man  assaulted,  has  since  died  in  consequence  of  that  assault. 
Kow,  this  indictment  is  for  the  manslaughter  of  that  man;  and  the 
question  is,  whether  the  suffering  of  the  imprisonment  for  the  assault 
is  an  answer  to  that  indictment,  and  that  depends  on  the  meaning  of 
the  words  "  for  the  same  cause  "  in  the  statute.  I  agree  with  the  Lord 
Chief  Baron  that  the  ease  of  Reg.  v.  Salvi  is  not  expressly  in  point. 
Salvi  had  been  acquitted  of  an  assault  with  intent  to  murder,  but  con- 
victed of  an  assault  with  intent  to  do  grievous  bodily  harm,  and  the 
prosecutor  having  subsequently  died  from  the  assault,  he  was  indicted 
for  murder ;  and  it  was  held  that  he  might  be  properly  so  indicted,  for 
that  murder  might  be  committed  without  any  intent  to  kill,  as,  for 
instance,  if  a  man,  intending  only  to  maim,  caused  death,  that  is  murder. 
I  think  that  decision  was  correct.  I  should  be  sorry  to  <lraw  a  distinc- 
tion between  the  words  "  for  the  same  cause  "  in  the  plea  of  autrefois 
acquit,  on  which  that  case  was  adjudicated,  and  the  same  words  in  the 


SECT.  II.]  REGINA   V.   MOHKIS.  85 

Stat.  2i  &  25  Vict.  c.  100,  s.  45.  It  would  be  a  very  serious  thing  if 
tiiere  were  any  (Ustinction.  The  statute  gives  a  release  from  all  further 
or  other  proceedings,  civil  or  criminal ;  and  if  a  dilferent  construction 
were  adopted,  it  would  follow  ihut  if  an  action  were  brought  under 
Lord  Campbell's  Act  in  respect  of  the  death  of  the  i)erson  assaulted, 
the  conviction  and  punishment  for  the  mere  assault  would  be  a  bar  to 
an}^  claim  for  compensation.  I  apprehend  that  that  cannot  be  so  ;  and 
that  the  cause  on  which  the  justices  adjudicated  was  not  the  same  as 
tliat  for  which  the  prisoner  has  been  convicted  under  this  indictment. 
A  new  olfence,  in  my  opinion,  arose  when  the  man  died.  I  therefore 
think  that  this  conviction  was  right. 

Byles,  J.  — I  am  of  opinion  that  the  prior  conviction  for  the  assault 
under  the  24  &  25  Vict,  c  100,  s.  45,  affords  no  defence  to  the  subse- 
quent indictment  for  manslaughter,  the  death  of  tlie  deceased  having 
occurred  after  the  conviction,  but  being  a  consequence  of  the  assault. 
The  form  and  intention  of  the  common  law  pleas  of  autrefois  convict 
and  autrefois  acquit  show  that  they  apply  only  where  there  has  been  a 
former  judicial  decision  on  the  same  accusation  in  substance,  and  where 
the  question  in  dispute  has  been  already  decided.  There  has,  in  the 
present  case,  been  no  judicial  decision  on  the  same  accusation,  and  the 
■whole  question  now  in  dispute  could  not  have  been  decided,  for  at 
the  time  of  the  hearing  before  the  magistrates  whether  the  assault 
would  amount  to  culpable  homicide  or  not  depended  on  the  then  future 
contingency  whether  it  would  cause  death.  The  case  of  Reg.  v.  Salvi, 
if  not  precisely  in  point,  is  nevertheless  a  strong  authority  for  this  view 
of  the  law.  But  reliance  is  placed  on  the  words  of  the  statute  24  &  26 
Vict.  c.  100,  s.  45,  "  for  the  same  cause."  It  is  to  be  observed  that 
that  statute  does  not  say  for  the  same  act,  but  "  for  the  same  cause." 
The  word  "  cause  "  may  undoubtedly  mean  "  act,"  but  it  is  ambiguous, 
and  it  may  also,  and  perhaps  with  greater  propriety,  be  held  to  mean 
"  cause  for  the  accusation."  The  cause  for  the  present  indictment 
comprehends  more  than  the  cause  in  the  former  summons  before  the 
magistrates,  for  it  comprehends  the  death  of  the  party  assaulted.  It  is 
therefore,  at  least  in  one  sense,  not  the  same  cause.  But  if  these  obser- 
vations on  the  meaning  of  the  word  "  cause,"  as  used  in  the  statute, 
should  appear  to  savour  too  much  of  refinement,  and  to  be  used  in 
support  of  a  forced  construction,  it  must  be  remembered  that  it  is  a 
sound  rule  to  construe  a  statute  in  conformity  with  the  common  law 
rather  than  against  it,  except  where  or  so  far  as  the  statute  is  plainly 
intended  to  alter  the  course  of  the  common  law.  An  additional  reason 
in  this  case  for  following  the  common  law  is  the  mischief  which  would 
result  from  a  different  construction.  My  brother  Martin  has  already 
illustrated  the  mischief  in  civil  cases  by  a  reference  to  Lord  Campbell's 
Act,  and  in  criminal  cases  the  mischiefs  might  be  much  greater.  A 
murderer,  for  example,  by  suffering  or  obtaining  a  previous  conviction 
for  an  assault,  might  escape  the  due  punishment  of  his  crime. 

Keating,  J.,  and  Shee,  J.,  concurred.  Convictioii  affirmed. 


86  WEMYSS   V.    HOPKINS.  fCHAP.  IV. 


WEMYSS   V.   HOPKINS. 
Queen's  Bench.     1875. 

[Reported  L.  R.  10  Q.  B.  378.] 

Case  stated  by  justices  of  Cardiganshire  under  20  &  21  "Vict.  c.  43. 

At  the  petty  sessions  at  Aberystwith,  on  the  2Gth  of  June,  1872,  a 
comphiint  was  preferred  b}'  the  superintendent  of  poUce  against  the 
appellant,  under  5  &  6  Wni.  4,  c.  50,  s.  78,  for  that  the  appellant, 
on  the  15th  of  June,  1872,  being  the  driver  of  a  certain  carriage  on  a 
certain  highway,  called  Penpache  Road,  did  then  and  there,  b}'  negli- 
gence or  wilful  misbehavior,  to  wit,  by  striking  a  certain  horse  ridden 
by  the  now  respondent,  cause  certain  hurt  and  damage  to  the  now 
respondent,  passing  on  the  highway,  by  causing  severe  bruises  and 
concussion  of  the  hip-joint. 

The  appellant  was  convicted  and  fined  £2. 

At  the  petty  sessions  at  Aberystwith,  on  the  7th  of  August,  1872, 
a  complaint  was  preferred  by  the  respondent  against  the  appellant, 
under  24  &  25  Vict.  c.  100,  s.  42,  for  that  the  appellant  did,  on  the 
15th  of  June,  1872,  unlawfully  assault,  strike,  and  otherwise  abuse 
the  respondent. 

The  appellant  was  convicted  and  fined  £1. 

On  the  hearing  of  the  last  complaint,  the  justices  found  as  a  fact 
that  the  appellant  did,  on  the  15th  of  June,  1872,  unlawfully  and 
wilfullv  strike  and  push  against  the  horse  upon  which  the  respondent 
was  riding,  and  also  against  the  respondent  herself,  and  caused  her  to 
fall  from  the  horse  to  the  ground,  whereby  she  sustained  a  concussion 
of  the  hip-joint. 

It  was  contended  on  behalf  of  the  appellant  that,  as  he  had  been  con- 
victed of  the  complaint  preferred  against  him  on  the  26th  of  June,  he 
could  not  be  convicted  again  for  what  was  the  same  offence. 

The  question  for  the  court  was  whether  the  appellant,  having  been 
convicted  on  the  26th  of  June,  1872,  under  3  &  4  Wm.  4,  c.  50,  upon 
the  complaint  of  the  superintendent  of  police,  could  again  be  convicted 
on  the  7th  of  August,  1872,  under  24  &  25  Vict.  c.  100,  s.  42,  upon  the 
complaint  of  the  respondent.^ 

Blackburn,  J.  I  think  the  fact  that  the  appellant  had  been  con- 
victed by  justices  under  one  Act  of  Parliament  for  what  amounted  to 
an  assault  is  a  bar  to  a  conviction  under  another  Act  of  Parliament  for 
the  same  assault.  The  defence  does  not  arise  on  a  plea  of  autrefois 
convict,  but  on  the  well-establi.ihed  rule  at  common  law  that  where  a 
person  has  been  convicted  and  punished  for  an  offence  b}'  a  court  of 
competent  jurisdiction,  transit  in  rem  judicatam ;  that  is,  the  conviction 
shall  be  a  bar  to  all  further  proceedings  for  the  same  oflJ'ence,  and  he 

1  Argument  of  counsel  !s  omitte*!. 


SECT.  II.]  WEMYSS  V.   HOPKINS,  B7 

shall  not  be  punished  again  for  the  same  matter ;  otherwise  there  might 
be  two  different  punishments  for  the  same  offence.  The  only  point 
raised  is  whether  a  defence  in  the  nature  of  a  plea  of  autrefois  convict 
would  extend  to  a  conviction  before  two  justices  whose  jurisdiction  is 
created  by  sUitute.  I  think  the  fact  that  tiie  jurisdiction  of  the  justices 
is  created  by  statute  makes  no  difference.  Where  the  conviction  is  by 
a  court  of  competent  jurisdiction,  it  matters  not  whether  the  conviction 
is  by  a  summary  proceeding  before  justices  or  by  trial  before  a  jury. 
It  is  necessary  in  the  present  case  to  have  it  proved,  just  as  in  the  case 
of  a  defence  upon  the  plea  of  autrefois  convict,  that  on  a  former  occa- 
sion the  appellant  was  charged  with  the  same  assault,  although  not  in 
the  same  words,  yet  in  terms  the  same,  and  that  he  was  then  convicted 
and  punished.  That  is  the  substantial  averment  in  a  plea  of  autrefois 
convict.  Reg.  v.  Elrington,  1  B.  &  S.  688  ;  31  L.  J.  (M.  C.)  14,  and  the 
other  cases  cited  do  not  apply,  for  the  provisions  of  §  28  of  9  Geo.  4, 
c.  31,  which  have  been  re-enacted  in  24  &  25  Vict,  c.  100,  s.  45,  go 
further  than  the  common  law,  and  release  a  person  who  has  been  con- 
victed and  paid  the  fine ;  or  who,  being  acquitted,  has  obtained  a  cer- 
tificate freeing  him  from  further  proceedings,  civil  or  criminal,  for  the 
same  cause.  In  this  case  we  must  rely  upon  the  common  law.  It  seems 
that  the  same  identical  matter  was  brought  before  a  competent  tribunal 
and  the  appellant  was  convicted  and  punished  for  it.  I  do  not  know 
whether  serving  the  punishment  makes  any  difference ;  but  he  was 
convicted  and  sentenced  for  it,  and  therefore  he  cannot  be  tried  again 
for  the  same  thing  before  another  tribunal ;  and  the  justices  who  con- 
victed the  appellant  a  second  time  made  a  mistake,  and  the  conviction 
must  be  quashed. 

Lush,  J.  I  am  also  of  opinion  that  the  second  conviction  should  be 
quashed  upon  the  ground  that  it  violated  a  fundamental  principle  of 
law,  that  no  person  shall  be  prosecuted  twice  for  the  same  offence. 
The  act  charged  against  the  appellant  on  the  first  occasion  was  an 
assault  upon  the  respondent  while  she  was  riding  a  horse  on  the  high- 
way, and  it  therefore  became  an  offence  for  which  the  appellant  might 
be  "punished  under  either  of  two  statutes.  The  appellant  was  prosecuted 
for  the  assault,  and  convicted  under  one  of  the  statutes,  3  &  4  Wm.  4, 
c.  50,  s.  78,  and  fined,  and  he  therefore  cannot  be  afterwards  convicted 
again  for  the  same  act  under  the  other  statute. 

Field,  J.  I  am  of  the  same  opinion.  The  case  seems  to  fall  within 
the  principle  enunciated  in  the  text-books,  particularly  in  Paley  on 
Convictions,  5th  ed.  p.  145,  and  Broom,  Legal  Maxims,  3d  ed.  p.  312  ; 
and  I  think  the  circumstance  that  this  was  a  conviction  under  a  juris- 
diction created  by  statute  does  not  make  any  difference  in  principle. 
A  person  cannot  be  twice  punished  for  the  same  cause. 

Judgment  for  the  appellant} 

J  See  Ilankins  v.  People,  106  111.  628;  cf.  State  v.  Thornton,  37  Mo.  360. 


88  STATE   V.   DAMON.  [CHAP.  lY, 


STATE  V.  INGLES. 
SuTERiOR  Court  of  North  Carolina.     1797. 

[Reported  2  Haywood,  4.] 

IxDiCTMENT  for  a  riot  with  others,  and  for  beating  and  imprisoning 
Edward  D.  Barry.  Tlie  defendant  pleaded  that  he  had  been  heretofore 
indicted  in  the  County  Court  of  Edgcombe  for  an  assault  and  battery 
on  the  said  Barry,  and  thereon  had  been  convicted  and  fined,  which 
indictment  and  conviction  had  been  grounded  on  the  same  facts  that 
this  indictment  was  preferred  for. 

Per  Curiam.  After  argument  by  JBaAer  for  the  State,  and  White 
for  the  defendant,  the  truth  of  this  plea  is  admitted  b}'  the  demurrer. 
The  State  cannot  divide  an  offence  consisting  of  several  trespasses  into 
as  many  indictments  as  there  are  acts  of  trespass  that  would  separately 
support  an  indictment,  and  afterwards  indict  for  the  offence  compounded 
of  them  all;  as,  for  instance,  just  [first?]  to  indict  for  an  assault, 
then  for  a  batter}',  then  for  imprisonment,  then  for  a  riot,  then  for  a 
ma}hem,  &c.  But  upon  an  indictment  for  an^  '*f  these  offences  the 
court  will  enquire  into  the  concomitant  facts,  and  receive  information 
thereof,  b}'  way  of  aggravating  the  fine  or  punishment,  and  will  propor- 
tion the  same  to  the  nature  of  the  offence  as  enhanced  b}-  all  these 
circumstances;  and  no  indictment  will  afterwards  lie  for  any  of  these 
separate  facts  done  at  the  same  time.  This  plea  is  a  good  one,  and 
must  be  allowed. 

The  plea  was  allowed  and  the  defendaiit  discharged. 


STATE  v.  DAMON. 
Supreme  Court  of  Judicature  of  Vermont.     1803. 

[Reported  2  Ti/hr,  387.] 

CuRiA.^  It  appears  that  the  defendant  wounded  two  persons,  in  the 
same  affray,  at  the  same  instant  of  time,  and  with  the  same  stroke.  On 
a  regular  complaint  made,  he  has  been  convicted  before  a  court  of  com- 
petent jurisdiction,  for  assaulting,  beating,  and  wounding  Frederick 
Miller,  one  of  those  persons.  He  stands  here  indicted  for  assaulting, 
beating,  and  wounding  Elias  Doty,  the  other  of  those  persons  ;  and  the 
defendant  pleads  in  bar  the  former  conviction,  which  he  alleges  to  have 
been  'yt  the  same  offence.  The  only  question  is  whether  the  defendant 
has  been  already  legally  convicted  of  the  offence  charged  in  the  indict- 

^  The  opinion  only  is  given ;  it  sufficieutly  states  the  case. 


SECT.  II.]  STATE   V.   LEWIS.  89 

meiit.  Of  this  there  can  be  no  doubt ;  for  it  is  apparent  on  the  record 
that  the  assault  and  battery  charged  in  the  indictment,  and  that  of 
which  he  was  convicted  by  I\Ir.  Justice  Jintidall,  were  at  the  same 
place  and  in  the  same  affra}-,  and  tlie  wounds  made  by  the  same  instru- 
ment and  by  the  same  stroke. 

This  is  not  a  question  between  either  of  the  persons  injured  by  the 
assault  and  battery  and  their  assailant ;  redress  has  been,  or  may  be 
obtained  by  them  by  private  actions  ;  but  it  is  a  question  between 
I  lie  government  and  its  subject,  and  the  court  are  clearly  of  opinion 
that  the  indictment  cannot  be  sustained.  The  indictment  charges  the 
defendant  with  having  disturbed  the  public  peace  by  assaulting  and 
wounding  one  of  its  citizens.  For  this  crime  he  shows  that  he  has  been 
legally  convicted  by  a  court  of  competent  jurisdiction.  lie  cannot 
therefore  be  again  held  to  answer  in  this  court  for  the  same  olfence.^ 

I*risoner  discharged. 


STATE  V.  LEWIS. 
Supreme  Court  of  North  Carolina.     1822. 

[Reported  2  Hawks,  98.] 

At  September  term,  1821,  of  Pitt  Superior  Court,  two  bills  of  indict- 
ment against  the  prisoner  were  found  b^'  the  grand  jury ;  the  one  for 
burglary  and  larceny,  the  other  for  a  robbery.  The  larceny  in  the  one 
bill,  and  the  robbery  in  the  other,  were  for  the  same  goods  and  chattels, 
and  there  was  but  one  taking.  At  the  same  term  the  prisoner  was 
found  guilty  of  the  larceny,  and  not  guilty  of  the  burglary.  On  this 
conviction  the  attorney-general  did  not  pra}'  any  judgment,  nor  was 
any  pronounced ;  and,  at  the  time  of  the  prisoner's  arraignment,  no 
motion  was  made  by  his  counsel  that  the  prosecuting  officer  should 
elect  on  which  indictment  he  would  try  the  prisoner.  At  March  term, 
1822,  the  prisoner  was  brought  to  the  bar,  and  the  attorney-general 
directed  a  nol.  pros,  to  be  entered  on  the  indictment  which  had  been 
tried  at  the  preceding  term,  but  the  court  (Norwood,  J.,  presiding) 
refused  to  permit  the  nol.  jyros.  The  attorne^'-general  then  moved  to 
arraign   the   prisoner   on   the  indictment  for  robbery ;    this  also   was 

1  Tlie  question  here  is  :  Can  a  person,  during  the  same  evening,  at  a  ball,  commit 
a  separate  assault  and  battery  upon  each  of  two  individuals  ?  Tlie  evidence  tends  to 
sliKW  that,  as  matter  of  fact  simply,  it  was  done  in  this  case.  But  the  a])pellant  claims 
that  how  many  soever  of  assaults  and  batteries  he  may  have  committed  during  the 
])enod  of  excitement  at  the  hall,  they  all  amounted  in  law  to  but  one  offence,  and  that 
therefore  the  first  fine  inflicted  for  that  offence,  viz.,  that  by  Justice  Brown,  for  the 
assault  and  battery  on  Frank  Kelly,  was  a  bar  to  all  subsequent  prosecutions  for 
assault  and  battery  committed  during  the  period  of  excitement  before  mentioned.  Wo 
cannot  concur  in  this  view.  We  think  a])pellant  might  bo  prosecuted  for  each  sepa- 
rate assault  aud  battery. — Pki;kins,  J  ,  in  Greenwood  v.  State,  64  lud.  250. 


90  *  PEOPLE   V.   McGOWAN.  [CHAP.  17. 

refused  b}-  the  court  until  the  first  indictment  should  be  disposed  of, 
and  on  the  refusal  of  the  attorney-general  to  pray  judgment  on  the  first 
indictment,  the  court  quashed  the  indictment  for  robber}'.  On  motion 
of  prisoner's  counsel,  his  clergy  was  allowed  him  on  the  conviction  for 
larceny,  and,  on  the  furtlier  refusal  of  the  attorncj'-general  to  pray  judg- 
ment, the  prisoner  was  ordered  to  be  discharged  ;  whereupon,  in  behalf 
of  the  State,  the  prosecuting  officer  appealed  to  this  court. 

Hall,  J.  It  is  admitted  in  this  case  that  both  indictments  are  for 
the  same  felonious  taking  of  the  same  goods.  The  defendant  is  found 
guilty  of  a  grand  larceny  on  that  indictment  which  charges  a  burglary 
and  stealing. 

The  other  indictment  is  for  a  robbery ;  a  robbery  is  a  larceny,  but  of 
a  more  aggravated  kind.  The  first  is  a  simple  larceny.  The  other  is 
a  compound  or  mixed  larceny,  because  it  includes  in  it  the  aggi*avation 
of  a  felonious  taking  from  the  person. 

Now,  suppose  the  defendant  should  be  tried  and  found  guilt}"  on  the 
second  indictment?  It  must  certainly  follow  that  he  had  been  tried 
twice  for  the  feloniousl}-  taking  of  the  same  goods.  It  is  true,  if  the 
first  conviction  is  a  bar  to  a  trial  on  the  second  indictment,  the  prisoner 
would  go  untried  as  to  that  which  constitutes  the  difference  between 
simple  larcen}"  and  mixed  and  compound  larcen}',  viz.,  a  taking  from  the 
person.  In  such  case  he  would  be  convicted  of  a  felonious  taking,  but 
not  of  a  felonious  taking  from  the  person.  Whereas,  should  he  be  tried 
and  convicted  on  both  indictments,  it  might  be  said  he  had  been  con- 
victed twice  of  a  felonious  taking,  and  once  of  a  felonious  taking  from 
the  person,  which  I  think  would  be  at  points  with  the  principle  "that 
no  one  should  be  twice  put  in  peril  for  the  same  crime."  This  principle 
has  such  deep  root  in  the  criminal  law,  and  is  cherished  b}'  so  many 
judicial  decisions,  that  it  is  not  deemed  necessary  to  refer  to  an}^  of 
them. 

I  therefore  think  the  conviction  on  the  first  indictment  for  burglary 
and  larceny  a  good  plea  to  a  trial  on  the  second  indictment  for  robbery. 
I  also  think  that  the  record  of  these  proceedings,  and  the  admissions  of 
the  attornej'-general  were  sufficient  to  authorize  the  judge  below  to 
discharge  the  prisoner.  And  in  this  opinion  the  rest  of  the  court 
concurred. 


PEOPLE  V.  McGOWAN. 
Supreme  Court  of  Judicature  op  New  York.     1837. 

[Reported  17  Wend.  386] 

Error  from  the  Albany  03"er  and  Terminer.  The  defendant  was 
indicted  at  the  Albanj'  general  sessions  in  June,  1837,  for  grand  larcen}', 
in  stealing  one  watch  of  the  value  of  $110,  one  watch  of  the  value  of 


SECT.  II.]  PEOPLE   V.    McGOWAN.  .  91 

$C'),  one  watch  of  the  value  of  $45,  one  gold  watch  of  the  value  of  Sll  0, 
one  gold  watch  of  the  value  of  ?Go,  and  one  silver  watch  of  the  value  of 
$45,  the  property  of  one  Alexander  M'FIarg.     The  prisoner  pleaded 
that  at  the  Albany  general  sessions  held  in  March,  1837,  he  was  in- 
dicted for  robbery,  being  (jjiarged  with   entering  a  shop,  putting  one 
James  De  Forrest  in  bodily  fear,  and  violently  taking  and  feloniously 
stealing  one  gold  watch  of  the  value  of  $110,  one  silver  watch  of  the 
value  of  $65,  and  one  other  silver  watch  of  the  value  of  $45,  the  prop- 
erty of  De  Forrest ;  and  also  with  entering  the  shop,  putting  I)e  Forrest 
in  bodily  fear,  and  violently  taking  and  feloniously  stealing  one  gold 
watch  of  the  value  of  $110,  one  silver  watch  of  the  value  of  $05,  and 
one  other  silver  watch  of  the  value  of  $45,  the  property  of  Alexander 
M'llarg;  that  he  was  arraigned  and  pleaded  not  guilty  to  the  said  in- 
dictment ;  that  the  issue  thus  joined  was  tried  at  the  Albany  Oyer  and 
Terminer,  in  April,  1837,  and  that  he  was  duly  acquitted  by  the  verdict 
of  a  jury.     The  prisoner  then  averred  his  identity  and  the  identity  of 
the  offences  charged  in  the  two  indictments,  and  prayed  to  be  dis- 
missed.    The  district  attorney  put  in  a  replication,  denying  the  identity 
of  the  offences,  and  upon  the  issue  thus  joined  the  prisoner  was  tried. 
The  record  of  acquittal  set  forth  in  the  plea  was  produced,  and  the 
counsel  for  the  prisoner  insisted  that  the  prisoner  was  entitled  to   a 
verdict  in  his  favor ;  but  the  presiding  judge  charged  the  jury  that  to 
entitle  him  to  a  verdict  it  was  necessary  that  the  evidence  to  support  the 
last  indictment  would  have  been  sufficient  to  support  the  first  indict- 
ment, and  that  as  the  proof  to  support  a  charge  of  larcenv  was  not 
sufficient  to  sustain  a  charge  of  robbery,  the  offences  charged  in  the  two 
indictments  were  not  the  same,  and  consequently  the  acquittal  on  the 
first  indictment  was  no  bar  to  a  conviction  on  the  second,  and  that  it 
was  their  duty  to  find  the  prisoner  guilt}-.     The  jury  found  accordingly. 
The  prisoner  having  excepted  to  the  charge  of  the  judge,  sued  out  a 
writ  of  error. 
H.  P.  Hates,  for  the  prisoner. 
/S.  Beardsley,  Attorney- General,  for  the  people. 
By  the  Court,  Cowen,  J.     The  first  indictment,  though  for  a  rob- 
bery, involved  the  question  of  simple  larceny,  of  which  the  prisoner, 
under  that  indictment,  might  have  been  convicted.     So  far  therefore  as 
the  nature  of  the  oflfence  is  concerned,  the  plea  was  valid  ;    the  prisoner 
had,  within  the  issue,  been  tried  and  acquitted  of  the  larceny.     The  rule  ' 
laid  down  by  the  Court  of  Sessions  applies  ;    for  the  same  proof  would 
sustain  either  indictment  to  the  extent  necessary  for  the  purposes  of 
the  plea. 

In  this  respect  no  proof  was  necessary  on  the  part  of  the  prisoner. 
The  replication  admitted  the  former  indictment  and  acquittal,  and  took 
issue  only  upon  the  identity  of  the  offences.  In  such  case  it  is  well 
settled  that  where  the  former  indictment  might  have  been  sustained  by 
showing  the  offence  charged  in  the  second,  a  prima  facie  case  is  made 
out  for  the  prisoner.     It  then  lies  with  the  people  to  show,  by  evidence 


92  PEOPLE   V.    McGOWAN.  [CHAP.  IV. 

cdiinide,  that  the  offences  are  substantial!}'  different  in  point  of  fact,  or 
to  give  some  other  answer. 

In  the  case  before  us,  it  is  said  for  the  people  that  the  two  offences 
differ  in  respect  to  the  identity  of  propert}- ;  the  former  indictment 
speaking  of  six  gold  and  silver  watches,  three  of  which  belonged  to 
De  Forrest,  and  three  to  M'Harg  ;  whereas,  now  it  is  chai-ged  that  all 
the  six,  viz.,  three  watches,  and  three  gold  and  silver  watches,  belonged 
to  the  latter ;  and  that  the  prisoner  admits  b}-  his  plea  that  he  stole 
these  six  which  belong  to  M'llarg.  We  cannot  but  see,  however, 
that  the  difference  is  mere  matter  of  form  ;  and  that  proof  might 
have  been  received  at  the  last  trial  of  the  same  facts  which  would  have 
been  suflScient  to  sustain  the  indictment  upon  the  first.  The  admission 
in  the  plea  is  not  of  ever}'  formal  allegation  which  the  counsel  for  the 
people  may  choose  to  insert  in  a  second  indictment.  It  admits  the 
substance,  which  is  grand  larcen}'  of  some  watch  belonging  to  M'Harg, 
and  that  is  just  such  an  offence  as  might  have  been  shown  upon  the 
first  trial.  There  is  no  such  substantial  conflict  in  the  indictments  as 
to  preclude  the  common  averment  that  the  offences  are  one  and  the 
same,  and  not  other  or  different. 

The  replication  thus  admitting  a  former  trial  and  acquittal  upon  an 
indictment  sustainable  by  the  same  proof  which  would  be  receivable 
under  the  second,  the  prisoner  was,  as  his  counsel  insisted,  prima  facie 
entitled  to  a  verdict.  It  la}'  with  the  counsel  for  the  people  to  prove 
their  case,  and  then  to  show  by  further  testimony  that  it  was  not  the 
case  before  presented,  nor  which  might  have  been  insisted  upon  at  the 
trial  for  the  robbery. 

At  all  events,  the  prisoner  was  entitled  to  go  farther  on  his  part,  and 
show  that,  in  truth,  the  former  trial  was  concerning  a  robbery,  or  a 
larceny  of  M'Harg's  watch.  This  would  have  exhibited  an  offence 
covered  by  the  last  indictment,  and  precluded  all  farther  inquiry  con- 
cerning it,  until  the  people  should  reply  by  contradictory  proof,  or  by 
setting  up,  on  new  proof,  a  really  distinct  and  untried  offence.  But  the 
ruling  of  the  court  below  cut  the  prisoner  off  from  all  farther  proof. 
The  whole  case  was  thrown  upon  a  substantial  difference  between  the 
offences  involved  in  the  two  indictments,  appearing  on  their  face. 

The  great  object  in  respect  to  that  class  of  pleas  in  bar  to  which  this 
belongs  is  to  see,  in  the  first  place,  whether  the  former  and  the  present 
declaration  or  indictment  are  of  sufficient  capacity  to  let  in  the  same 
cause  of  action  or  offence  under  each.  If  so,  the  former  trial  is. 
prima  facie.,  always  a  bar.  The  parties  should,  however,  be  allowed 
free  scope  for  inquiry  as  to  what  was,  in  truth,  the  substantial  matter 
before  litigated.  If  that  were  the  same,  and  the  case  was  tried  upon 
its  merits,  the  decision  becomes  conclusive,  especially  in  a  criminal 
proceeding. 

The  verdict  at  the  general  sessions  must  be  set  aside,  and  a  new  trial 
had  in  that  court. 


I 


SECT.  II.J  COMMONWEALTH   V.   CLAIR,  93 


COMMONWEALTH  v.  CLAIR. 
Supreme  Judicial  Court  of  Massachusetts.     1863. 

[Reported  7  Allen,  525.] 

IxDiCTMKNT  for  embczzlliig  sixteen  Melton  cloth  overcoats,  the  prop- 
erty of  David  M.  Hodgdon. 

At  the  trial  in  the  Superior  Court,  before  Ames,  J.,  the  defendant 
pleaded  in  bar  a  previous  acquittal  upon  the  same  charge  ;  and  it  was 
admitted,  on  the  part  of  tlic  Commonwealth,  that  the  defendant  had 
been  dulj'  tried  and  acquitted  on  an  indictment  charging  him  with 
embezzling  a  quantity  of  Melton  cloth,  lasting,  velvet,  flannel,  wadding, 
and  other  materials  used  in  making  overcoats,  the  property  of  said 
Hodgdon,  which  had  been  delivered  to  tlie  defendant  to  be  made  into 
overcoats  ;  and  that  the  present  indictment  was  for  the  same  crime 
intended  to  be  covered  by  the  first  indictment.  The  principal  facts 
whicii  appeared  in  both  cases  were,  that  Hodgdon  delivered  the 
materials  to  the  defendant  as  aforesaid,  and  that  several  overcoats  were 
made  up  and  returned,  but  the  work  proved  unsatisfactory,  and  they 
were  redelivered  for  completion  to  the  defendant,  who  subsequently  did 
the  acts  relied  upon  as  proof  of  the  embezzlement. 

The  judge  overruled  the  plea  in  bar,  and  the  defendant  alleged 
exceptions. 

I^.  W.  ISawyer^  for  the  defendant. 

Foster,  Attorney-General,  for  the  Commonwealth. 

BiGELow,  C.  J.  The  obvious  and  decisive  answer  to  the  defendant's 
plea  in  bar  of  autrefois  acquit  is,  that  the  first  indictment  charges  a 
different  offence  from  that  set  out  in  the  indictment  on  which  the 
defendant  is  now  held  to  answer.  The  principle  of  law  is  well  set- 
tled that  in  order  to  support  a  plea  of  autrefois  acquit  the  offences 
charged  in  the  two  indictments  must  be  identical.  The  test  of  this 
identity  is  to  ascertain  whether  the  defendant  might  have  lieen  con- 
victed on  the  first  indictment  by  proof  of  the  facts  alleged  in  the  second. 
The  question  is  not  whetlier  the  same  facts  are  offered  in  proof  to  sus- 
tain the  second  indictment  as  were  given  in  evidence  on  the  trial  of  tlie 
first ;  but  whether  the  facts  are  so  combined  and  charged  in  the  two 
indictments  as  to  constitute  the  same  offence.  It  is  not  sufficient  to  say, 
ill  support  of  a  plea  of  axitr<fois  acquit,  that  the  transaction  or  facts  on 
which  the  two  indictments  are  based  arc  the  same.  It  is  necessary  to 
^'o  further,  and  to  ascertain  and  determine  whether  they  are  so  alleged 
in  the  two  indictments  as  to  constitute  not  only  the  same  offence  in 
degree  or  kind,  but  also  that  proof  of  the  same  facts  offered  to  sustain 
the  second  indictment  would  have  well  supported  the  first.  The  King 
V.  Vandcrcomb,  2  Leach  (Itli  ed.).  708;  Commonwealth  /•.  Rohy,  12 
Pick.  496,  500  ;  Commonwealth  r.  Wade,  17  Pick.  400.     The  last  case 


94  COMMONWEALTH   V.    CLAIR.  [CHAP.  IV. 

alTords  an  apt  illustration  of  the  practical  application  of  the  rule.  The 
tlclendant  was  indicted  for  burning  a  dwelling-house  by  setting  fire  to 
the  barn  of  A.  and  B.  The  evidence  showed  that  it  was  the  barn  of  A. 
and  C.  This  variance  in  the  description  of  the  otfence  was  held  to  be 
fatal,  and  the  defendant  was  acquitted.  He  was  subsequently  indicted 
for  burning  the  same  house  by  setting  fire  to  the  barn  of  A.  and  C.  Ou 
a  plea  of  autrefois  acquit  it  was  held  that  the  previous  acquittal  on  the 
first  indictment  was  no  bar.  The  facts  offered  in  support  of  the  two 
indictments  were  the  same,  but  different  offences  were  charged  in  them. 
The  averment  of  property  in  the  barn  was  material,  and  this  fact  being 
alleged  differently  in  the  two  indictments,  they  were  not  for  the  same 
offence  either  in  form  or  substance.  So  in  the  case  at  bar.  The 
defendant  was  first  indicted  for  embezzling  cloth,  velvet,  flannel,  and 
other  materials  of  which  overcoats  were  made.  This  indictment  would 
not  have  been  supported  if  it  appeared  that,  at  the  time  when  the 
alleged  embezzlement  was  committed  b}'  the  defendant,  these  articles 
no  longer  existed  separately,  but  had  been  used  and  converted  into  gar- 
ments properl}'  called  and  known  as  overcoats.  There  would  have  been 
in  such  case  a  material  variance  in  the  description  of  the  articles  embez- 
zled ;  the  evidence  would  not  have  corresponded  with  the  allegation  in 
the  indictment  of  embezzling  cloth  and  other  materials,  and  the  defend- 
ant would  have  been  rightly  acquitted  on  that  ground.  It  is  common 
learning  that  in  indictments  for  larceny,  embezzlement,  and  kindred 
oflTences,  the  description  of  the  property  which  forms  the  subject  of  the 
offence  must  be  proved  as  laid.  A  person  indicted  for  stealing  shoes 
cannot  be  convicted  b}'  proof  that  he  had  stolen  boots  ;  nor  is  an  indict- 
ment for  stealing  a  sheep,  which  by  legal  implication  avers  that  the 
animal  was  alive  when  stolen,  supported  by  evidence  that  it  was  in  fact 
dead  when  feloniously  taken.  If  an  article  has  obtained  in  common 
parlance  a  particular  name,  it  is  erroneous  to  describe  it  by  the  name  of 
the  material  of  which  it  is  composed.  Archb.  Crim.  PI.  (5th  Am.  ed.) 
48  ;  Roscoe's  Crim.  Ev.  (5th  ed.)  203  ;  Rex  v.  Edwards,  Russ.  &  Ry. 
497  ;  Rex  v.  Halloway,  1  C.  &  P.  128  ;  Regina  v.  Mansfield,  Car.  & 
M.  140. 

In  the  second  indictment  the  defendant  is  charged  with  embezzling 
overcoats.  This  is  a  different  offence  from  that  charged  in  the  first 
indictment.  Nor  would  the  evidence  which  would  be  suflScient  to  sup- 
port it  have  warranted  a  conviction  on  the  charge  of  embezzling  the 
materials  of  which  the  coats  were  made.  He  has  therefore  been 
acquitted  of  a  different  offence  from  that  now  charged  against  him. 
Such  acquittal  is  no  bar  to  the  present  indictment. 

^xc^tions  overruled. 


SECT.  I.]  CliOUTHEK'S   CASE.  95 

CHAPTER  V. 
THE   CHIMIN AL  ACT. 


SECTION  I. 

Completed  Acts. 

2  Hawkins,  Pleas  of  the  Crown,  Ch.  25,  Sect.  4.  There  can  be  no 
doubt  but  that  all  capital  crimes  whatsoever,  and  also  all  kinds  of  inferior 
crimes  of  a  public  nature,  as  misprisions,  and  all  other  contempts,  all 
disturbances  of  the  peace,  all  oppressions,  and  all  other  misdemeanors 
whatsoever  of  a  public  evil  example  against  the  common  law  may  be 
indicted ;  but  no  injuries  of  a  private  nature,  unless  they  some  way 
concern  the  king. 

Also  it  seems  to  be  a  good  general  ground,  that  wherever  a  statute 
prohibits  a  matter  of  public  grievance  to  the  liberties  and  security  of  a 
subject,  or  commands  a  matter  of  public  convenience,  as  the  repairing 
of  the  common  streets  of  a  town,  an  offender  against  such  statute  is 
punishable,  not  only  at  the  suit  of  the  party  aggrieved,  but  also  by 
way  of  indictment  for  his  contempt  of  the  statute,  unless  such  method 
of  proceeding  do  manifestly  appear  to  be  excluded  by  it. 


CROUTHER'S   CASE. 

Queen's  Bencu.     1598. 

[Reported  Croke  Eliz.  654.] 

Crodther  was  indicted,  for  that  a  burglary  was  committed  in  the 
night  by  persons  unknown,  and  J.  S.  gave  notice  thereof  unto  him. 
being  then  constable,  and  required  him  to  make  hue  and  cry,  and  he 
refused,  etc.  Exception  was  taken  to  the  matter  of  the  indictment, 
because  it  hath  been  adjudged  that  an  hundred  shall  not  be  charged 
with  a  robbery  committed  in  the  night,  because  they  are  not  bound  to 
give  attendance  ;  no  more  ought  a  constable  to  do  it  in  the  night.  But 
all  the  Court  held  the  indictment  to  be  good,  notwithstanding ;  for  it  is 
not  like  to  the  case  of  an  hundred  ;  because  it  is  the  constable's  duty, 
upon  notice  given  unto  him,  presently  to  pursue.^    And  it  was  said 

1  See  People  v.  Coon,  15  Wend.  277;  State  v.  Haywood,  3  Jones,  399.  —  Ed. 


96  ANONYMOUS.  [CHAP.  V. 

that  in  ever}'  case  where  a  statute  prohibits  anj'thing,  and  doth  not 
limit  a  penalt}',  the  party  offending  therein  may  be  indicted,  as  for  a 
contempt  against  the  statute.^ 

Another  exception  was  taken,  because  he  did  not  shew  tlie  place  of 
the  notice ;  and  that  was  held  to  be  material.  Whereupon  the  party 
was  discharged. 


TAYLOR'S   CASE. 
King's  Bench.     1676. 

[Reported  1  Ventris,  293.] 

An  information  exhibited  against  him  in  the  crown  office,  for  utter- 
ing of  divers  blasphemous  expressions,  horrible  to  hear ;  viz.,  That 
Jesus  Christ  was  a  bastard,  a  whoremaster ;  Religion  was  a  cheat ;  and 
that  he  neither  feared  God,  the  Devil,  or  man. 

Being  upon  his  trial,  he  acknowledged  the  speaking  of  the  words, 
except  the  word  bastard ;  and  for  the  rest,  he  pretended  to  mean  them 
in  another  sense  than  they  ordinarily  bear;  viz.,  whoremaster,  i.  e., 
that  Christ  was  master  of  the  whore  of  Babylon,  and  such  kind  of 
evasions  for  the  rest.  But  all  the  words  being  proved  b^^  several  wit- 
nesses, he  was  found  guilt}'. 

And  Hale  said,  That  such  kind  of  wicked,  blasphemous  words  were 
not  onl}'  an  offence  to  God  and  religion,  but  a  crime  against  the  laws, 
State  and  government,  and  therefore  punishable  in  this  court  (for  to 
sa}'  religion  is  a  cheat,  is  to  dissolve  all  those  obligations  whereby  the 
civil  societies  are  preferred)  ;  and  that  Christianity  is  parcel  of  the  laws 
of  England,  and  therefore  to  reproach  the  Christian  religion  is  to  speak 
in  subversion  of  the  law. 

"Wherefore  they  gave  judgment  upon  him  ;  viz.,  To  stand  in  the  pillory 
in  three  several  places,  and  to  pay  one  thousand  marks  fine,  and  to  find 
sureties  for  his  good  behavior  during  life.^ 


ANONYMOUS. 
King's  Bench.     1688. 

[Reported  Comberback,  46.] 

A  MAN  was  indicted  for  words  spoken  of  a  justice  of  peace  [a  buffle- 
headed  fellow] ,  and  an  exception  was  taken  that  the  words  were  not 
indictable. 

1  See  State  v.  Parker,  91  N.  C.  650.  —  Ed. 
*  Ace.  People  v.  Ruggles,  8  Johns,  290.  — Ed. 


SECT.  I.]  REX   V.   WHEATLY.  -  97 

But  ^>er  Curiam,  Because  it  appears  they  were  spoken  of  him  in  the 
execution  of  his  office,  the  indictment  is  good.  And  per  [Wright]  C. 
J.,  All  actions  for  slandering  a  justice  in  his  office,  may  be  turned  into 
indictments. 


REX   I'.  WHEATLY. 
King's  Bench.     17G1. 

[Reported  2  Burrow,  1125.1] 

Defendant  was  indicted,  for  that  he,  being  a  common  brewer,  and 
intending  to  deceive  and  defraud  one  Richard  Webb,  delivered  to  him 
sixteen  gallons,  and  no  more,  of  amber  beer,  for  and  as  eighteen  gal- 
lons, which  wanted  two  gallons  of  the  due  measure  contracted  to  be 
delivered  ;  and  received  15s  for  the  same;  to  the  evil  example,  &c., 
and  against  the  peace,  &c.     After  conviction  before  Lord  Mansfield,    r    /     /j  ^ 

C.  J.,  at  Guildhall,  3Iorton  moved  in  arrest  of  judgment.  wJa^  ^ 

Mr.  Morton  and  Mr.  Yates,  who  were  of  counsel  for  the  defendant,  (^k— **^^ 


obiected  that  the  fact  charged  was  nothing  more  than  a  mere  breach  of  .    ir-*-,-^     Jl 


a  civil  contract,  not  an  indictable  offence.  To  prove  this,  they  cited 
Rex  V.  Combrun,  p.  1751,  24  G.  2  B.  R.,  which  was  exactly  and  pune-^ 
tuall3-  the  same  case  as  the  present,  only  mutatis  m,utandis.  And 
Rex  V.  Driffield,  Tr.  1754,  27,  28  G.  2  B.  R.  S.  P.  An  indictment  for 
a  cheat,  in  selling  coals  as  and  for  two  bushels,  whereas  it  was  a  peck 
short  of  that  measure ;  there  the  indictment  was  quashed  on  motion. 
Rex  V.  Hannah  Heath :  An  indictment  for  selling  and  delivering 
seventeen  gallons,  three  quarts,  and  one-half  pint  of  geneva  (and  the 
like  of  brandy)  as  and  for  a  greater  quantity,  was  quashed  on  motion. 

In  1  Salk.  151.,  Nehutfs  Case,  P.  4  Am.  B.  R.,  a  certiorari  was 
granted  to  remove  the  indictment  from  the  Old  Bailey ;  because  it  was 
not  a  matter  criminal :  it  was  "  borrowing  £600  and  promising  to  send 
a  pledge  of  fine  cloth  and  gold  dust,  and  sending  only  some  coarse 
cloth,  and  no  gold  dust." 

In  Ti-emaine,  title  Indictments  for  Cheats,  all  of  them  either  lay  a 
conspiracy  or  show  something  amounting  to  a  false  token. 

A  mere  civil  wrong  will  not  support  an  indictment.  And  here  is  no 
ci'iminal  charge.  It  is  not  alleged  "  that  he  used  false  measures." 
The  prosecutor  should  have  examined  and  seen  that  it  was  the  right 
and  just  quantity. 

Mr.  Norton,  pro  rege,  offered  the  following  reasons  why  the  judg- 
ment should  not  be  arrested. 

The  defendant  has  been  convicted  of  the  fact.  He  may  bring  a  writ 
of  error,  if  the  indictment  is  erroneous. 

1  s.  c.  1  William  Blackstone,  273.  The  statement  of  the  case  is  taken  from  the 
latter  report. 

7 


9«  KEX   V.    WHEATLY.  [CHAP.  V. 

This  is  an  indictable  offence;  'tis  a  cheat,  a  public  fraud  in  the 
course  of  his  trade,  —  he  is  stated  to  be  a  brewer.  Tliere  is  a  distinction 
between  private  frauds  and  frauds  in  the  course  of  trade.  The  same 
fact  may  be  a  ground  for  a  private  action,  and  for  an  indictment  too. 

None' of  the  cited  cases  were  after  verdict.  It  might  here  (for  aught 
that  appears  to  the  contrary)  have  been  proved  "  that  he  sold  this  less 
quantity  by  false  measure ;  "  and  everything  shall  be  presumed  in 
favor  of  a  verdict.  And  here  is  a  false  pretence,  at  the  least ;  and  it 
appeared  upon  the  trial  to  be  a  very  foul  case. 

The  counsel  for  the  defendant,  in  reply,  said,  that  nothing  can  be 
iutended  or  presumed  in  a  criminal  case  but  secundum  allegata  et 
probata;  it  might  happen  without  his  own  personal  knowledge.  And 
they  denied  any  distinction  between  this  being  done  privately  and  its 
being  done  in  the  course  of  trade. 

Lord  Mansfield.  The  question  is,  Whether  the  fact  here  alleged 
be  an  indictable  crime  or  not.  The  fact  alleged  is :  — 
[Then  his  Lordship  stated  the  charge,  verbatim.'] 
The  argument  that  has  been  urged  1)y  the  prosecutor's  counsel,  from 
the  present  case's  coming  before  the  court  after  a  verdict,  and  the  cases 
cited  being  only  of  quashing  upon  motion,  before  any  verdict  really  turns 
the  other  way  ;  because  the  Court  may  use  a  discretion,  "  whether  it  be 
right  to  quash  upon  motion  or  put  the  defendant  to  demur ;  "  but  after 
verdict  they  are  obliged  to  arrest  the  judgment  if  they  see  the  charge  to 
be  insufficient.  And  in  a  criminal  charge  there  is  no  latitude  of  inten- 
tion, to  include  anything  more  than  is  charged ;  the  charge  must  be 
explicit  enough  to  support  itself. 

Here  the  fact  is  allowed,  but  the  consequence  is  denied :  the  objec- 
tion is,  that  the  fact  is  not  an  offence  indictable,  though  acknowledged 
to  be  true  as  charged. 

And  that  the  fact  here  charged  should  not  be  considered  as  an  indic- 
table offence,  but  left  to  a  civil  remedy  by  an  action,  is  reasonable  and 
right  in  the  nature  of  the  thing ;  because  it  is  only  an  inconvenience 
and  injury  to  a  private  person,  arising  from  that  private  person's  owa 
negligence  and  carelessness  in  not  measuring  the  liquor,  upon  receiving 
it,  to  see  whether  it  held  out  the  just  measure  or  not. 

The  offence  that  is  indictable  must  be  such  a  one  as  affects  the  pub- 
lic. As  if  a  man  uses  false  weights  and  measures,  and  sells  by  them 
to  all  or  to  many  of  his  customers,  or  uses  them  in  the  general  course 
of  his  dealing  ;  so,  if  a  man  defrauds  another,  under  false  tokens.  For 
these  are  deceptions  that  common  care  and  prudence  are  not  sufficient 
to  guard  against.  So,  if  there  be  a  conspiracy  to  cheat ;  for  ordinary 
care  and  caution  is  no  guard  against  this. 

Those  cases  are  much  more  than  mere  private  injuries :  they  are 
public  offences.  But  here,  it  is  a  mere  private  imposition  or  deception. 
No  false  weights  or  measures  are  used,  no  false  tokens  given,  no  con- 
s[)iracy ;  only  an  imposition  upon  the  person  he  was  dealing  with,  in 
delivering  him  a  less  quantity  instead  of  a  greater,  which  the  other 


SECT.  I.]  REX   V.    WHEATLY.  99 

carelessly  accepted.  '  T  is  only  a  non-performance  of  his  contract,  fur 
which  non-performance  he  may  bring  his  action. 

The  selling  an  unsound  horse,  as  and  for  a  sound  one,  is  not  indic- 
table ;  the  buyer  should  be  more  ui)on  his  guard. 

The  several  cases  cited  are  alone  sufBcient  to  prove  that  the  otfence 
here  charged  is  not  an  indictable  offence.  But  besides  these,  my 
brother  Benison  informs  me  of  another  case,  that  has  not  been 
mentioned  at  the  bar.  It  was  M.  6  G.  1.  B.  R.  Rex  c.  Wilders,  a 
brewer.  He  was  indicted  for  a  cheat  in  sending  in  to  Mr.  Hicks,  an 
ale-house  keeper,  so  many  vessels  of  ale  marked  as  c<jntaining  such  a 
measure,  and  writing  a  letter  to  Mr.  Hicks,  assuring  him  that  they  did 
contain  that  measure,  when  in  fact  they  did  not  contain  such  measure, 
but  so  much  less,  &c.  This  indictment  was  quashed  on  argument, 
upon  a  motion,  which  is  a  stronger  case  than  the  present. 

Therefore  the  law  is  clearly  established  and  settled  ;  and  I  tliink  on 
right  grounds  ;  but  on  whatever  grounds  it  might  have  been  originally 
established,  yet  it  ought  to  be  adhered  to,  after  it  is  established  and 
settled. 

Therefore  (though  I  may  be  sorry  for  it  in  the  present  case,  as 
circumstanced)  the  judgment  must  be  arrested. 

Mr.  Just.  Denison  concurred  with  his  Lordship. 

This  is  nothing  more  than  an  action  upon  the  case  turned  into  an 
indictment.  'T  is  a  private  breach  of  contract.  And  if  this  were  to  be 
allowed  of,  it  would  alter  the  course  of  the  law,  by  making  the  injured 
l)erson  a  witness  upon  the  indictment,  which  he  could  not  be  (for  him- 
self) in  an  action. 

Here  are  no  false  weights,  nor  false  measures,  nor  any  false  token 
at  all,  nor  any  conspiracy. 

In  the  case  of  the  Queen  v.  Maccarty  et  al.,  6  Mod.  301,  2  Ld.  Raym. 
1179,  there  were  false  tokens,  or  what  was  considered  as  such.  In  the 
case  of  the  Queen  u.  Jones,  1  Salk.  379,  2  Ld.  Raym.  1013,  6  Mod. 
105,  the  defendant  had  received  £20,  pretending  to  be  sent  by  one  who 
did  not  send  him.  Et  per  Cur. :  "  It  is  not  indictable,  unless  he  came 
with  false  tokens.  We  are  not  to  indict  one  man  for  making  a  fool  of 
another  ;  let  him  bring  his  action." 

If  there  be  false  tokens,  or  a  conspirac}',  it  is  another  case.  The 
Queen  v.  Maccarty  was  a  conspirac}',  as  well  as  false  tokens.  Rex  v. 
Wilders  was  a  much  stronger  case  than  this,  and  was  well  considered. 
Tiiat  was  an  imposition  in  the  course  of  his  trade,  and  the  man  had 
marked  the  vessels  as  containing  more  gallons  than  the}'  did  really 
contain,  and  had  written  a  letter  to  Mr.  Hicks,  attesting  that  they 
did  so. 

But  the  present  case  is  no  more  than  a  mere  breach  of  contract :  he 
has  not  delivered  the  quantity  which  he  undertook  to  deliver. 

The  Court  use  a  discretion  in  quashing  indictments  on  motion,  but 
they  are  obliged  to  arrest  judgment  when  the  matter  is  not  indictable. 
And  this  matter  is  not  indictable,  therefore  the  jutlgmeut  ought  to  be 
arrested. 


100  REX   V.    WHEATLY.  [CHAP.  V. 

Mr.  Just.  Foster.  "We  are  obliged  to  follow  settled  and  established 
rules  already  fixed  b}"  former  detei-minations  in  cases  of  the  same  kind. 

The  case  of  Rex  v.  Wilders  was  a  strong  case,  —  too  strong,  perhaps, 
for  there  were  false  tokens ;  the  vessels  were  marked  as  containing  a 
greater  quantity  than  they  really  did. 

Mr.  Just.  WiLMOT  concurred.  This  matter  has  been  fulh-  settled 
and  established,  and  upon  a  reasonable  foot.  The  true  distinction  that 
ought  to  be  attended  to  in  all  cases  of  this  kind,  and  whicli  will  solve 
them  all,  is  this,  —  That  in  such  impositions  or  deceits,  where  common 
prudence  may  guard  persons  against  the  suffering  from  them,  the 
offence  is  not  indictable,  but  the  party  is  left  to  his  civil  remedy  for  the 
redress  of  the  injur}'  that  has  been  done  him  ;  but  where  false  weights 
and  measures  are  used,  or  false  tokens  produced,  or  such  methods 
taken  to  cheat  and  deceive  as  people  cannot,  by  any  ordinary 
care  or  prudence,  be  guarded  against,  there  it  is  an  offence  indictable. 

In  the  case  of  Rex  v.  Pinkney,  P.  6  G.  2  B.  R.,  upon  an  indictment 
"  for  selling  a  sack  of  corn  (at  Rippon  market)  which  he  falsely 
affirmed  to  contain  a  Winchester  bushel,  tibi  reverd  et  infacto  plurbnum 
deficiehat^  <fcc.,"  the  indictment  was  quashed  upon  motion. 

In  the  case  now  before  us,  the  prosecutor  might  have  measured  the 
liquor  before  he  accepted  it,  and  it  was  his  own  indolence  and 
negligence  if  he  did  not.  Therefore  common  prudence  might  have 
guarded  him  against  suffering  an}'  inconvenience  b}'  the  defendant's 
offering  him  less  than  he  had  contracted  for. 

This  was  the  case  of  Rex  v.  Pinkney ;  and  it  was  there  said.  That 
if  a  shop-keeper  who  deals  in  cloth  pretends  to  sell  ten  yards  of  cloth, 
but  instead  of  ten  yards  bought  of  him,  delivers  only  six,  yet  the 
buyer  cannot  indict  him  for  delivering  only  six ;  because  he  might 
have  measured  it,  and  seen  whether  it  held  out  as  it  ought  to  do,  or 
not.  In  this  case  of  Rex  v.  Pinkney,  and  also  in  the  case  of  Rex  v. 
Combrun,  a  case  of  Rex  v.  Nicholson,  at  the  sittings  before  Lord 
Raymond  after  Michaelmas  term,  4  G.  2,  was  mentioned ;  which  was 
an  indictment  for  selling  six  chaldron  of  coals,  which  ought  to  contain 
thirty-six  bushels  each,  and  delivering  six  bushels  short.  Lord  Ray- 
mond was  so  clear  in  it  that  he  ordered  the  defendant  to  be  acquitted. 

Per  Cur.  unanimousl}', 

The  judgment  must  he  arrested} 

I  See  Rex  v.  Osbora,  3  Burr.  1697;  Com.  v.  Warren,  6  Mass.  72.  — Ed. 


SECT.  I.J  REX   V.    DELAVAL.  101 


REX  V.  DELAVAL. 
King's  Bknch.     1763. 

[Reported  3  Burrow,  1434.] 

Lord  Mansfield  now  delivered  the  opiniou  of  the  court.^ 

This  is  a  motion  for  an  iuforuiation  against  the  defendants  for  a 
conspiracy  to  put  this  young  girl  (an  apprentice  to  one  of  them)  into 
the  hands  of  a  gentleman  of  rank  and  fortune,  for  the  purpose  of 
prostitution ;  contrary  to  decency  and  morality,  and  without  the  knowl- 
edge or  approbation  of  her  father,  who  prosecutes  them  for  it,  and  has 
now  cleared  himself  of  all  imputation,  and  appears  to  be  an  innocent 
and  an  injured  man. 

A  female  infant,  then  about  fifteen,  was  bound  apprentice  by  her 
father  to  the  defendant  Bates,  a  music-master ;  the  girl  appearing  to 
have  natural  talents  for  music.  The  father  became  bound  to  the 
master  in  the  penalty  of  £200  for  his  daughter's  performance  of  the 
covenants  contained  in  the  indenture.  She  became  eminent  for  vocal 
music  ;  and  thereby  gained  a  great  profit  to  Bates,  her  master.  During 
her  apprenticeship,  being  then  about  seventeen,  she  is  debauched  by 
Sir  Francis  Delaval,  whilst  she  resided  in  the  house  of  Bates'  father ; 
as  Bates  himself  was  a  single  man  and  no  housekeeper.  In  April  last. 
Bates,  her  master,  indirectly  assigns  her  to  Sir  Francis,  as  much  as  it 
was  in  his  power  to  assign  her  over ;  and  this  is  done,  plainly  and 
manifestly,  for  bad  purposes.  Bates  at  the  same  time  releases  the 
penalty  to  the  father,  but  without  the  father's  application  or  even 
privity,  and  receives  the  £200  from  Sir  Francis,  by  the  hands  of  his 
tailor,  who  is  employed  to  pay  it  to  Bates,  and  also  enters  into  a  bond 
to  Bates  to  secure  to  him  the  profits  arising  from  the  girl's  singing  this 
summer  at  Marybone.  And  then  she  is  indentured  to  Sir  Francis 
Delaval  to  learn  music  of  him ;  and  she  covenants  with  him,  both  in 
the  usual  covenants  of  indentures  of  apprenticeship,  and  likewise  in 
several  others  (as  "  not  to  quit  even  his  apartments"),  etc.  These 
articles  between  the  parties  are  signed  by  all  but  the  father,  and  a 
bond  is  drawn  from  him,  in  the  penalty  of  £200  for  his  daughter's  per- 
formance of  these  covenants  (which  he  never  executed) .  And  the  girl 
goes  and  lives  and  still  does  live  with  Sir  Francis,  notoriously,  as  a 
kept  mistress. 

Thus  she  has  been  played  over,  by  Bates,  into  his  hands,  for  this 
purpose.  No  man  can  avoid  seeing  all  this ;  let  him  wink  ever  so 
much. 

I  remember  a  cause  in  the  court  of  chancery,  wherein  it  appeared 
that  a  man  had  formerly  assigned  his  wife  over  to  another  man,  and 
Lord  Hardwicke  directed  a  prosecution  for  that  transaction,  as  being 

*  Part  of  the  opinion  only  is  given. 


102  REX   V.   BLAKE.  [CHAP.  V, 

notoriously  and  grossly  against  public  decency  and  good  manners. 
And  so  is  the  present  case. 

It  is  true  that  many  offences  of  the  incontinent  kind  fall  properh- 
under  the  jurisdiction  of  the  ecclesiastical  court,  and  are  appropri- 
ated to  it.  But  if  you  except  tliose  appropriated  cases,  this  court  is 
the  custos  morum  of  the  people,  and  has  the  supcrintendency  of 
offences  contra  bouos  mores;  and  upon  this  ground  both  Sir  Charles 
Sedley  and  Curl,  who  had  been  guilty  of  offences  against  good  manners, 
were  prosecuted  here. 

However,  besides  this,  there  is,  in  the  present  case,  a  conspiracy 
and  confederacy  amongst  the  defendants,  which  are  clearly  and  indis- 
putably within  the  proper  jurisdiction  of  this  court. 

And  in  the  conspiracy  they  were  all  three  concerned. 

Therefore  let  the  rule  be  absolute  against  all  three. 


REX  V.  BLAKE. 
King's  Bench.     1765. 

[Reported  3  Burrow,  1731.] 

Mr.  Dunning  showed  cause  why  an  indictment  should  not  be 
quashed. 

He  called  it  an  indictment  for  a  forcible  entry  ;  and  argued  "  that  an 
indictment  for  a  forcible  entry  may  be  maintained  at  common  law." 
He  cited  a  case  in  Trin.  1753,  26,  27,  G.  2.  B.  R.  Rex  v.  Brown  and 
Others;  and  Rex  v.  Bathurst,  Tr.  1755,  28  G.  2.  S.  P. 

But,  N.  B.  This  indictment  at  present  in  question  was  only  for 
(vi  et  armis)  breaking  and  entering  a  close  ("not  a  dwelling-house)  and 
unlawfully  and  unjustly  expelling  the  prosecutors,  and  keeping  them 
out  of  possession. 

Mr.  Popham,  on  behalf  of  the  defendants,  objected  "  that  this  was 
an  indictment  for  a  mere  trespass,  for  a  civil  injury ;  not  a  public,  but 
a  private  one  ;  a  mere  entry  into  his  close,  and  keeping  him  out  of  it." 
The  "  force  and  arms  "  is  applied  only  to  the  entry,  not  to  the  expel- 
ling or  keeping  out  of  possession  ;  they  are  only  charged  to  be  unlaw- 
fuUy  and  unjustly.  This  is  no  other  force  than  the  law  implies.  No 
actual  breach  of  the  peace  is  stated  ;  or  any  riot ;  or  unlawful  assembly. 
And  he  cited  the  cases  of  Rex  v.  Gask,  Rex  r.  Hide,  and  Rex  v.  Hide 
and  Another  (which,  together  with  a  note  upon  them,  may  be  seen  in 
the  text  and  margin  of  page  1768). 

Rex  V.  Bathurst  is  the  only  case  where  the  objection  has  not  been 
held  fatal ;  and  that  was  because  it  was  a  forcible  entry  into  a  dwelling- 
house. 


SECT.  I.]  REX    V.    LYNN.  103 

Rex  V.  Jopson  et  al.  Tr.  24,  25  G.  2  B.  R.  was  an  unlawful  asscinV)ly 
of  a  great  number  of  people.     (V.  ante  3  Burr.  1702,  in  the  margin.) 

Mr.  Justice  Wilmot.  No  doubt,  an  indictment  will  lie  at  common 
law  for  a  forcible  entry,  thougli  they  are  generally  brouglit  on  the  acts 
of  parliament.  On  the  acts  of  parliament,  it  is  necessary  to  state  the 
nature  of  the  estate,  because  there  must  be  restitution  ;  but  they  may 
be  brought  at  common  law. 

Here  the  words  "  force  and  arms"  are  not  applied  to  the  whole  ;  but 
if  they  were  applied  to  the  whole,  yet  it  ought  to  be  such  an  actual 
force  as  implies  a  breach  of  the  peace,  and  makes  an  indictable  offence. 
And  this  I  take  to  be  the  rule,  "  That  it  ought  to  appear  upon  the  face 
of  the  indictment  to  be  an  indictable  offence." 

Here  indeed  are  sixteen  defendants.  But  the  number  of  the  defend- 
ants makes  no  difference,  in  itself;  no  riot,  or  unlawful  assembly,  or 
anything  of  that  kind  is  charged.  It  ought  to  amount  to  an  actual 
breach  of  the  peace  indictable,  in  order  to  support  an  indictment.  For, 
otherwise,  it  is  only  a  matter  of  civil  complaint.  And  this  ought  to 
appear  upon  the  face  of  the  indictment. 

Mr.  Justice  Yates  concurred.  Here  is  no  force  or  violence  shown 
upon  the  face  of  the  indictment,  to  make  it  appear  to  be  an  actual 
force  indictable  ;  nor  is  any  riot  charged,  or  any  unlawful  assembly. 
Therefore  the  mere  number  makes  no  difference. 

Mr.  Justice  Aston  concurred;  the  true  rule  is,  "That  it  ought  to 
appear  upon  the  face  of  the  indictment  to  be  an  indictable  offence." 

Per  Cub.  unanimousl}', 

Rule  made  absolute  to  quash  this  indictmejit.^ 


REX  V.  LYNN. 
King's  Bench.     1789. 

[Reported  Leach  (4<A  ed.),  497.] 

Lynn  had  been  convicted  of  a  misdemeanor  on  an  indictment  which 
charged  that  he,  on  such  a  day,  had  entered  a  certain  burying-ground, 
and  taken  from  a  coffin  buried  in  the  earth  a  dead  body  for  the  purpose 
of  dissection. 

In  Michaelmas  Term,  1789,  it  was  moved  in  the  Court  of  King's 
Bench  in  arrest  of  the  judgment,  that  this  was  an  offence  of  ecclesiastical 
cognizance,  and  not  indictable  in  any  court  of  criminal  jurisdiction  at 
the  common  law.     But   by  the   Court,  the   office  is  cognizable  in  a 

1  Ace.  Rex  V.  Storr.,  3  Burr.  1698  ;  Kilpatrick  v.  Peoi)le,  .•>  Denio,  277  ;  Com.  r. 
Edwards,  1  Ashm.  46.  See  State  v.  Bmrovighs,  7  N.  J.  L.  426  ;  Com.  v.  Powill, 
8  Leigh,  719.  Compare  Com.  v.  Taylor,  5  Binn.  277  ;  Henderson  v.  Com.  8  GratL 
708.  —  Ed. 


104  REX   V.   BURNETT.  [CHAP.  V. 

criminal  court,  as  highly  indecent,  and  contra  bonos  mores;  and  the 
circumstance  of  its  being  for  the  purposes  of  dissection  does  not  make 
it  a  less  indictable  offence. 

The  defendant,  on  the  probability  of  his  having  committed  this  crime 
merely  from  ignorance,  was  only  fined  five  marks. 


REX  V.  BURNETT. 
King's  Bench.     1815. 

[Reported  4  Maule  and  Selwi/ti,  272.] 

The  defendant,  an  apothecary,  was  indicted  by  that  addition  at  the 
Middlesex  Sessions  that  he,  on,  etc.,  in  the  fifty-fourth  year,  etc.,  and  on 
divers  other  days  between  that  day  and  the  29th  of  July,  with  force  and 
arms  at,  etc.,  unlawfully  and  injuriously  did  inoculate  one  A.  S.  an 
infant  of  seven  months,  one  W.  M.  an  infant  of  one  year,  and  divers 
other  infants  of  tender  years,  whose  names  are  unknown,  with  a  certain 
contagious  and  dangerous  disease  called  the  small  pox,  by  means  of 
which  the  said  A.  S.,  W.M.,  and  the  said  other  infants  on  the  said  day 
and  on  the  other  days,  etc.,  at,  etc.,  became  and  were  dangerously  ill 
of  the  said  contagious  disease ;  and  the  defendant,  well  knowing  the 
premises,  after  he  had  so  inoculated  them,  and  while  they  were  so 
dangerously  ill  of  the  said  contagious  disease  on,  etc.,  at,  etc.,  did 
unlawfully  and  injuriously  cause  the  said  A.  S.,  W.  M.,  and  the  said 
other  infants,  to  be  carried  into  and  along  a  certain  public  street  and 
highway,  called,  etc.,  in  and  along  which  divers  subjects  were  then 
passing,  and  near  to  divers  dwelling-houses,  etc.,  to  the  great  danger 
of  infecting  with  the  said  contagious  disease  all  the  subjects  who  were 
on  those  days  and  times  in  and  near  the  said  street  and  highway, 
dwelling-houses,  etc.,  who  had  not  had  the  disease,  and  ad  commune 
7iocu7nentum,  etc. 

The  indictment  being  removed  into  this  court,  the  defendant  pleaded 
not  guilty,  and  was  found  guilty. 

And  now  it  was  moved  by  W.  Owen,  in  arrest  of  judgment,  that  this 
was  not  any  offence.  And  he  said  that  this  indictment  differed  materially 
from  that  in  Rex  v.  Vantandillo,  4  M.  &  S.  73  ;  for  by  this  indictment  it 
appears  that  the  defendant  is  by  profession  a  person  qualified  to  inoc- 
ulate with  tliis  disease,  provided  it  be  lawful  for  any  person  to  inoculate 
with  it.  Therefore  unless  the  court  determine  that  the  inoculating 
with  the  small  pox  has  now  become  of  itself  unlawful,  there  is  nothing 
in  this  indictment  to  show  it  unlawful ;  for  as  to  its  being  alleged  lh:it 
he  caused  them  to  be  carried  along  the  street,  that  is  no  more  than 
this,  that  he  directed  the  patients  to  attend  him  for  advice  instead  of 
visiting  them,  or  that  he  prescribed  what  he  might  deem  essential  to 


SECT.  I.]  BEATTY  V.   GILLBANKS.  105 

their  recover}-,  air  and  exercise.  And  in  Rex  v.  Sutton,  which  was  an 
indictment  for  keeping  an  inoculating  house,  and  therefore  niucli  more 
likely  to  spread  infection  than  wluit  has  been  doue  here,  the  court  said 
tliat  the  defendant  might  demur. 

Lord  Ellknbuuoluh,  C.  J.  The  indictment  lays  it  to  be  unlawfully 
and  injuriousl}-,  and  to  make  that  out,  it  must  be  shown  that  what  was 
done  was  in  the  manner  of  doing  it  incautious,  and  likely  to  affect  the 
health  of  others.  The  words  unlawfully  and  injuriously  preclude  all 
legal  cause  of  excuse.  And  though  inoculation  for  the  small  pox  may 
be  practised  lawfully  and  innocently,  yet  it  must  be  under  such  guards 
as  not  to  endanger  the  public  health  by  communicating  this  infectious 
disease. 

Dampiek,  J.  The  charge  amounts  to  this,  that  the  defendant,  after 
inoculating  the  children,  unlawfully  exposed  them,  while  infected  with 
the  disease,  in  the  public  street  to  the  danger  of  the  public  health. 

Le  Blanc,  J.  in  passing  sentence  observed  that  the  introduction 
of  vaccination  did  not  render  the  practise  of  inoculation  for  the  small 
pox  unlawful,  but  that  in  all  times  it  was  unlawful,  and  an  indictable 
offence,  to  expose  persons  infected  with  contagious  disorders,  and 
therefore  liable  to  communicate  them  to  the  public,  in  a  public  place 
of  resort.  1 

T^ie  defendant  was  sentenced  to  six  mo7iths'  imprisonment. 


BEATTY  V.  GILLBANKS. 
Queen's  Bench  Division.     1882. 

[Reported  15  Cox,  C.  C.  138.] 

Field,  J.''  I  am  of  opinion  that  this  order  cannot  be  supported,  and 
must  therefore  be  discharged.  The  appellants,  it  appears,  together 
with  a  large  number  of  other  people,  belong  to  a  body  of  persons  called 
the  Salvation  Array,  who  are  associated  together  for  a  purpose  which 
cannot  be  said  to  be  otherwise  than  lawful  and  laudable,  or  at  all  events 
cannot  be  called  unlawful,  their  object  and  intention  being  to  induce  a 
class  of  persons  who  have  little  or  no  knowledge  of  religion  and  no  taste 
or  disposition  for  religious  exercises  or  for  going  to  places  of  worship, 
to  join  them  in  their  processions,  and  so  to  get  them  together  to  attend 
and  take  part  in  their  religious  exercises,  in  the  hope  that  they  may  be 
reclaimed  and  drawn  away  from  vicious  and  irreligious  habits  and 
courses  of  life,  and  that  a  kind  of  revival  in  the  matter  of  religion 

^  See  Reg.  v.  Henson,  Dears.  24;  Reg.  v.  Lister,  Dears.  &  B.  209  (but  gee  People 
V.  Sands,  1  Jolnis.  78) ;  U.  S.  v.  Hart,  1  Pet.  C.  C.  390.  —  Ed. 

2  The  opinion  of  Field,  J.,  only  is  printed.  Cavk,  J.,  delivered  a  concurring 
opinion. 


106  BEATTY  V.   GILLBANKS.  [CHAP.  V. 

may  be  brought  about  amongst  those  who  were  previously  dead  to  any 
such  influences.  That  undoubtedly  is  the  object  of  the  Salvation  Army 
and  of  the  appellants,  and  no  other  object  or  intention  has  been  or 
can  be  imputed  to  them  ;  and,  as  has  been  said  by  their  learned  coun- 
sel, and  doubtless  with  perfect  truth,  so  far  are  they  from  desiring  to 
carry  out  that  object  by  means  of  any  force  or  violence,  their  principles 
are  directly  and  entirely  opposed  to  any  conduct  of  that  kind,  or  to  the 
exercise  or  employment  of  anything  like  physical  force  ;  and,  indeed, 
it  appears  that  on  the  occasion  in  question  they  used  no  personal  force 
or  violence,  but,  on  the  contrary,  when  arrested  by  the  police,  they 
submitted  quietly  without  the  exhibition  of  any  resistance  either  on 
tlieir  own  parts  or  on  that  of  any  other  member  of  their  body.  Such 
being  their  lawful  object  and  intention,  and  having  no  desire  or  inten- 
tion of  using  force  or  violence  of  any  kind,  it  appeared  that  on  this 
26th  day  of  March  they  assembled,  as  they  had  previously  done  on 
other  occasions,  in  considerable  numbers  at  their  hall,  and  proceeded 
to  march  thence  in  procession  through  the  streets  of  the  town  of  Weston- 
super-Mare.  Now  that,  in  itself,  was  certainly  not  an  unlawful  thing 
to  do,  nor  can  such  an  assembly  be  said  to  be  an  unlawful  one.  Numer- 
ous instances  might  be  mentioned  of  large  bodies  of  persons  assembling 
in  much  larger  numbers,  and  marching,  accompanied  by  banners  and 
bands  of  music,  througli  the  public  streets,  and  no  one  has  ever  doubted 
that  such  processions  were  perfectly  lawful.  Now  the  appellants  com- 
plain that,  for  having  so  assembled  as  I  have  before  stated,  they  have 
been  adjudged  guilty  of  the  offence  of  holding  an  unlawful  assembly, 
and  have  in  consequence  been  ordered  to  find  sureties  to  keep  the  peace, 
in  the  absence  of  any  evidence  of  their  having  broken  it.  It  was  of 
course  necessary  that  the  justices  should  find  that  some  unlawful  act 
had  been  committed  by  the  appellants  in  order  to  justify  the  magis- 
trates in  binding  them  over.  The  offence  charged  against  them  is 
"  unlawfully  and  tumultuousl}'  assembling  with  others  to  the  disturb- 
ance of  the  public  peace,  and  against  the  peace  of  the  Queen  ; "  aud  of 
course,  before  they  can  be  convicted  upon  the  charge,  clear  proof  must 
be  adduced  that  the  specific  offence  charged  has  been  committed.  Now, 
was  that  charge  sustained?  There  is  no  doubt  that  the  appellants 
did  assemble  together  with  other  persons  in  great  numbers,  but  that 
alone  is  insufficient.  The  assembly  must  be  a  "  tumultuous  assembly" 
and  "  against  the  peace,"  in  order  to  render  it  an  unlawful  one.  But 
there  was  nothing,  so  far  as  the  appellants  were  concerned,  to  show  that 
their  conduct  was  in  the  least  degree  "  tumultuous"  or  "  against  the 
peace."  All  that  they  did  was  to  assemble  together  to  walk  through 
the  town  ;  and  it  is  admitted  by  the  learned  counsel  for  the  respondent, 
that  as  regards  the  appellants  themselves,  there  was  no  disturbance  of 
the  peace,  and  that  their  conduct  was  quiet  and  peaceable.  But  then 
it  is  argued  that,  as  in  fact  their  line  of  conduct  was  the  same  as  had 
on  previous  similar  occasions  led  to  tumultuous  and  riotous  proceed- 
ings with  stone-throwing  and  fighting,  causing  a  disturbance  of  the 


SECT.  I.]  BEATTY   V.   GILLBANKS.  107 

public  peace  and  terror  to  the  inhabitants  of  the  town,  and  as  on  the 
present  occasion  like  results  would  in  all  probal)ility  be  produced, 
therefore  the  appellants,  being  well  aware  of  the  likelihood  of  such 
results  again  occurring,  were  guilty  of  the  offence  charged  against 
them.  Now,  without  doubt,  as  a  general  rule<«t  must  be  taken  that 
every  person  intends  what  are  the  natural  and  necessary  consequences 
of  his  own  acts  ;  and  if  in  the  present  case  it  had  been  their  intention, 
or  if  it  had  been  the  natural  and  necessary  consequence  of  their  acts, 
to  produce  the  disturbance  of  the  peace  which  occurred,  then  the  appel- 
lants would  have  been  responsible  for  it,  and  the  magistrates  would 
have  been  right  in  binding  them  over  to  keep  the  peace.  But  tlie  evi- 
dence as  set  forth  in  the  case  shows  that,  so  far  from  that  being  the 
case,  the  acts  and  conduct  of  the  appellants  caused  nothing  of  the 
kind,  but  on  the  contrary,  that  the  disturbance  that  did  take  place  was 
caused  entirely  by  the  unlawful  and  unjustifiable  interference  of  the 
Skeleton  Armj',  a  body  of  persons  opposed  to  the  religious  views  of 
the  appellants  and  the  Salvation  Army,  and  that  but  for  the  opposition 
and  molestation  offered  to  the  Salvationists  by  these  other  persons,  no 
disturbance  of  any  kind  would  have  taken  place.  The  appellants  were 
guilty  of  no  offence  in  their  passing  through  the  streets,  and  why  should 
other  persons  interfere  with  or  molest  them  ?  What  right  had  they  to 
do  so?  If  they  were  doing  anything  unlawful,  it  was  for  the  magis- 
trates and  police,  the  appointed  guardians  of  law  and  order,  to  inter- 
pose. The  law  relating  to  unlawful  assemblies,  as  laid  down  in  the 
books  and  the  cases,  affords  no  support  to  the  view  of  the  matter  for 
■which  the  learned  counsel  for  the  respondent  was  obliged  to  contend, 
viz.,  that  persons  acting  lawfully  are  to  be  held  responsible  and  pun- 
ished merely  because  other  persons  are  thereby  induced  to  act  unlaw- 
fully and  create  a  disturbance.  In  1  Russell  on  Crimes  (4th  edit.  p. 
387),  an  unlawful  assembly  is  defined  as  follows  :  "An  unlawful  assem- 
bly, according  to  the  common  opinion,  is  a  disturbance  of  the  peace 
by  persons  barel}'  assembling  together  with  the  intention  to  do  a  thing 
which,  if  it  were  executed,  would  make  them  rioters,  but  neither  actually 
executing  it  nor  making  a  motion  towards  the  execution  of  it."  It  is 
clear  that,  according  to  this  definition  of  the  offence,  the  appellants* 
were  not  guilty  ;  for  it  is  not  pretended  that  they  had,  but,  on  the  con- 
trary, it  is  admitted  that  they  had  not,  any  intention  to  create  a  riot, 
or  to  commit  any  riotous  or  other  unlawful  act.  Many  examples  of 
what  are  unlawful  assemblies  are  given  in  Hawkins'  Pleas  of  the  Crown, 
])Ook  1,  cap.  28,  ss.  9  and  10,  in  all  of  which  the  necessary  circum- 
r^tances  of  terror  are  present  in  the  assembly  itself,  either  as  regards 
the  object  for  which  it  is  gathered  together,  or  in  the  manner  of  its 
assembling  and  proceeding  to  carry  out  that  object.  The  present  case, 
however,  differs  from  the  cases  there  stated  ;  for  here  the  only  terror 
that  existed  was  caused  by  tlie  unlawful  resistance  wilfully  and  design- 
edly offered  to  the  proceedings  of  the  Salvation  Army  by  an  unlawful 
organization  outside  and  distinct  from  them,  called  the  Skeleton  Army. 


108  RESPUBLICA   V.   TEISCHER.  [CHAP.  V 

It  was  suggested  jy  the  respondent's  counsel  that  if  these  Salvation 
processions  were  allowed,  similar  opposition  would  be  offered  to  them 
in  future,  and  that  similar  disturbances  would  ensue.  But  I  cannot 
believe  that  that  will  be  so.  I  hope,  and  I  cannot  but  think,  that  when 
the  Skeleton  Army,  and  all  other  persons  who  are  opposed  to  the  pro- 
ceedings of  the  Salvation  Army,  come  to  learn,  as  they  surely  will 
learn,  that  they  have  no  possible  right  to  interfere  with  or  in  any 
way  to  obstruct  the  Salvation  Army  in  their  lawful  and  peaceable  pro- 
cessions, they  will  abstain  from  opposing  or  disturbing  them.  It  is 
usual,  happily,  in  this  country  for  people  to  respect  and  obey  the  law 
when  once  declared  and  understood,  and  I  hope  and  have  no  doubt 
that  it  will  be  so  in  the  present  case.  But  if  it  should  not  be  so,  there 
is  no  doubt  that  the  magistrates  and  police,  both  at  Weston-super- 
Mare  and  everywhere  else,  will  understand  their  duty  and  not  fail  to 
do  it  efficiently,  or  hesitate,  should  the  necessity  arise,  to  deal  with 
the  Skeleton  Army  and  other  disturbers  of  the  public  peace  as  they 
did  in  the  present  instance  with  the  appellants  ;  for  no  one  can  doubt 
that  the  authorities  are  only  anxious  to  do  their  duty  and  to  prevent  a 
disturbance  of  the  public  peace.  The  present  decision  of  the  justices, 
however,  amounts  to  this,  that  a  man  may  be  punished  for  acting  law- 
fully if  he  knows  that  his  so  doing  may  induce  another  man  to  act 
unlawfully,  —  a  proposition  without  any  authority  whatever  to  support 
it.  Under  these  circumstances,  the  questions  put  to  us  by  the  justices 
must  be  negatively  answered,  and  the  order  appealed  against  be  dis- 
charged. 


RESPUBLICA  V.  TEISCHER. 
Sdpreme  Court  of  Pennsylvania.      1788. 

[Reported  1  Dallas,  335.] 

The  defendant  had  been  convicted  in  the  county  of  Berks  upon  an 
indictment  for  maliciously,  wilfully,  and  wickedly  killing  a  horse  ;  and 
upon  a  motion  in  arrest  of  judgment,  it  came  on  to  be  argued  whether 
the  offence,  so  laid,  was  indictable. 

Sergeant,  in  support  of  the  motion,  contended  that  this  was  an  in- 
jury of  a  private  nature,  amounting  to  nothing  more  than  a  trespass  ; 
and  that  to  bring  the  case  within  the  general  rule  of  indictments  for 
the  protection  of  society,  it  was  essential  that  the  injury  should  be 
stated  to  have  been  perpetrated  secretly  as  well  as  maliciously,  —  which 
last  he  said  was  a  word  of  mere  form,  and  capable  of  an  indefinite 
application  to  every  kind  of  mischief.  To  show  the  leading  distinction 
between  trespasses  for  which  there  is  a  private  remedy  and  crimes 
for  which  there  is  a  public  prosecution,  he  cited  Hawk.  PI.  Cr.  210, 
lib.  2,  c.  22,  s.  4 ;    and  be  contended  that  the  principle  of  several 


SECT.  I.]  RESPUBLICA   V.   TEISCHER.  109 

cases,  in  which  it  was  dcterininod  an  indictment  woukl  not  lie,  applied 
to  the  case  before  the  court.     2  Stra.  793  ;  1  Stra.  G79. 

The  Attorney/- General  ol)served,  in  reply,  that  though  he  had  not 
been  able  to  discover  any  instance  of  an  indictment  at  common  law 
for  killing  an  animal,  or,  indeed,  for  any  other  species  of  malicious 
mischief,  yet  that  the  reason  of  this  was  probably  the  early  interfer- 
ence of  the  statute  law  to  punish  ofifences  of  such  enormity ;  for  that 
in  all  the  precedents,  as  well  ancient  as  modern,  he  had  found  the 
charge  laid  contra  formam  statuti,  except  in  the  case  of  an  information 
for  killing  a  dog,  —  upon  which,  however,  he  did  not  mean  to  rely. 
10  Mod.  337. 

He  said  that  the  law  proceeded  upon  principle,  and  not  merely  upon 
precedent.  In  the  case  of  Wade,  for  embezzling  the  public  money,  no 
precedent  was  produced ;  and  one  Henry  Shallcross  was  lately  con- 
demned in  JMontgomery  County  for  maliciously  burning  a  barn  (not 
having  hay  or  corn  in  it) ,  though  there  was  certainly  no  statute  for 
punishing  an  offence  of  that  description  in  Pennsylvania.  The  prin- 
ciple, therefore,  is  that  every  act  of  a  public  evil  example  and  against 
good  morals  is  an  offence  indictable  by  the  common  law ;  and  this 
principle  affects  the  killing  of  a  horse,  as  much,  at  least,  as  the  burn- 
ing of  an  empty  barn. 

But  he  contended  that  there  were  many  private  wrongs  which  were 
punishable  by  public  prosecution  ;  and  that  with  respect  to  these  a 
distinction  had  been  accurately  established  in  2  Burr.  1129,  where  it  is 
said  that  "  in  such  impositions  or  deceits  where  common  prudence 
may  guard  persons  against  the  suffering  from  them,  the  offence  is  not 
indictable,  but  the  party  is  left  to  his  civil  remedy  for  the  redress  of 
the  injury  that  has  been  done  him;  but  where  false  weights  and  meas- 
ures are  used,  or  false  tokens  produced,  or  such  methods  taken  to 
cheat  and  deceive  as  people  cannot  by  any  ordinary  care  or  prudence 
be  guarded  against,  there  it  is  an  offence  indictable."  —  Accordingly, 
in  Crown  Circ.  Comp.  231 ;  1  Stra.  595  ;  S.  C.  Crown  Circ.  Comp. 
24,  are  cases  of  private  wrongs,  and  3'et  punished  by  indictment ;  be- 
cause, as  it  is  said  in  Burrow,  common  prudence  could  not  have 
guarded  the  persons  against  the  injury  and  inconveniency  which  they 
respectively  sustained.  The  same  reason  must  have  prevailed  in  an 
indictment  at  Lancaster  (the  draft  of  which  remains  in  the  precedent ' 
book  of  the  successive  attorneys-general  of  this  State)  for  poisoning 
bread,  and  giving  it  to  some  cliickeus ;  and  it  applies  in  full  force  to 
the  case  before  the  court. 

Independent,  however,  of  these  authorities  and  principles,  the  jury 
have  foiuid  the  killing  to  be  something  more  than  a  trespass ;  and  that 
it  was  done  maliciously  forms  the  gist  of  the  indictment ;  which  must  be 
proved  by  the  prosecutor,  and  might  have  been  controverted  and 
denied  by  the  defendant.  Being  therefore  charged,  and  found  by  the 
verdict,  it  was  more  than  form  ;  it  was  matter  of  substance. 

The  opinion  of  the  court  was  delivered,  on  the  loth  of  July,  by  the 
Chief  Justice. 


110  COMMONWEALTH   V.    ECKERT.  [CHAP.  V. 

IM'Kean,  C.  J.  The  defendant  was  indicted  for  "  maliciously,  wil- 
fully, and  wickedly  killing  a  horse ; "  and  being  convicted  by  the  jury, 
it  has  been  urged,  in  arrest  of  judgment,  that  this  offence  was  not  of 
uu  indictable  nature. 

It  is  true  that  on  the  examination  of  the  cases  we  have  not  fouud 
the  line  accurately  drawn ;  but  it  seems  to  be  agreed  that  whatever 
amounts  to  a  public  wrong  may  be  made  the  subject  of  an  indictment. 
The  poisoning  of  chickens,  cheating  with  false  dice,  fraudulently  tear- 
ing a  promissory  note,  and  many  other  offences  of  a  similar  description, 
have  heretofore  been  indicted  in  Pennsylvania;  and  12  Mod.  337, 
furnishes  the  case  of  an  indictment  for  killing  a  dog,  —  an  animal  of 
.-far  less  value  than  a  horse.  Breaking  windows  by  throwing  stones  at 
them,  though  a  sufficient  number  of  persons  were  not  engaged  to  ren- 
der it  a  riot,  and  the  embezzlement  of  public  moneys,  have,  likewise, 
in  this  State  been  deemed  public  wrongs,  for  which  the  private  sufferer 
was  not  alone  entitled  to  redress ;  and  unless,  indeed,  an  indictment 
■would  lie,  there  are  some  very  heinous  offences  which  might  be  perpe- 
trated with  absolute  impunity ;  since  the  rules  of  evidence,  in  a  civil 
suit,  exclude  the  testimony  of  the  party  injured,  though  the  nature  of 
the  transaction  generally  makes  it  impossible  to  produce  any  other 
proof. 

For  these  reasons,  therefore,  and  for  many  others  which  it  is  un- 
necessary to  recapitulate,  as  we  entertain  no  doubt  upon  the  subject, 
•we  think,  the  indictment  will  lie. 

Let  judgment  be  entered  for  the  Commonwealth.^ 


COMMONWEALTH  v.  ECKERT. 
CouET  OF  Quarter  Sessions,  Pennsylvania,  1812. 

[Reported  2  Browne,  249.] 

The  defendant  was  indicted  for  a  misdemeanor,  in  cutting  and 
deadening  a  black-walnut  tree,  on  the  common,  or  public  ground, 
adjoining  the  village  of  Hanover,  the  property  of  which  was  vested  in 
certain  trustees,  for  the  use  of  the  inhabitants  of  said  town,  by  deed 
from  the  original  owner  of  the  land.'^ 

For  the  Commonwealth,  it  was  contended  that  it  was  a  maxim  in 
the  law,  that  there  was  no  injury  without  a  remedy,  3  Bac.  Ab.  92 ; 
and  this  being  a  public  loss  and  injury,  nothing  but  an  indictment 
would  lie  :  it  is  the  malicious  intent  that  constitutes  the  crime. 

»  See  U.  S.  V.  Jackson,  4  Cr.  C.  C.  483  ;  Anon.,  7  Dane  Abr.  261. 

For  instances  of  acts  held  criminal  because  they  tended  to  disturb  or  alarm  the  pub- 
lic, see  Com.  v.  Oaks,  113  Mass.  8  ;  State  v.  Huntley,  3  Ired.  418  ;  Com.  v.  Cassidy, 
6  Pbila.  82  ;  State  v.  Williams,  2  Overt.  108.  —  Ed. 

'^  The  report  of  this  case  has  been  condensed.  —  Ed. 


SECT.  I.]  COMMONWEALTH   V.    SILSBEE.  Ill 

Every  act  of  a  public  evil  example  aiitl  against  good  morals  is  in- 
dictable at  common  law.     1  Dall.  335. 

Hoicie,  for  the  defendant.  It  is  a  ride  in  morality,  as  well  as  in 
charity,  to  apply  an  innocent  motive,  rather  than  a  malicious  one,  to 
have  actuated  the  defendant.  A  crime  or  misdemeanor  indictable, 
must  be  a  violation  of  some  known  public  law.  4  I>1.  Com.  .0  ;  1  Hawk. 
P.  C.  366,  7,  sect.  1.  Act  of  Assembly  against  taking  otT  or  breaking 
knockers  on  doors,  spouts,  &c.,  breaking  down  or  destroying  signs, 
&c.  Kead  Dig.  7,  Act  of  1772.  These  were  offences  not  indictable 
at  connnon  law;  and  therefore  the  necessity  of  the  statute.  A  number 
of  cases  of  a  private  nature  are  not  indictable.  2  Hawk.  P.  C.  301. 
Such  as  breaking  closes,  &c.  3  Burr.  1698.  Cases  that  apply  to  indi- 
viduals or  to  a  parish  are  not  indictable,  and  there  is  no  difference  in 
this  case  from  that  of  six,  eight,  or  ten  tenants  in  common  of  a  prop- 
erty ;  and  one  of  the  number  cutting  a  tree,  an  indictment  could  not  be 
supported  against  him  that  did  the  act. 

Peii  Curiam,  Franklin,  President,  to  the  jury  :  — 

The  defendant  is  charged  with  a  misdemeanor,  in  cutting  and  dead- 
ening a  black-walnut  tree,  standing  on  public  ground  adjoining  the 
town  of  Hanover,  which  ground  appears  to  be  vested  by  deed  in  cer- 
tain trustees,  for  the  use  and  benefit  of  all  the  inhabitants  of  said 
town.  This  tree  was  kept  and  appropriated,  by  the  people  of  that 
place,  for  shade  and  ornament. 

The  doctrine  on  subjects  of  this  kind  is  well  laid  down  by  the  late 
Chief  Justice  McKean.  1  Dall.  335.  Whatever  amounts  to  a  public 
wrong,  as  killing  a  horse,  poisoning  chickens,  and  the  like,  is  the  sub- 
ject of  an  indictment  for  a  misdemeanor. 

Malice  forms  the  guilt  of  the  indictment.  Any  evil  design,  proceed- 
ing from  a  depraved  or  wicked  heart. 

If  you  should  consider  the  tree  was  useful  for  public  convenience, 
ornament,  and  shade  (which  we  think  has  been  fully  proved),  you  may 
convict  the  defendant ;  if  not,  acquit  him.^  Verdict,  Guilty. 


COMMONWEALTH   v.   SILSBEE. 
Supreme  Judicial  Court  of  Massachusetts.     1812. 

[Reported  9  Massachusetts,  417.] 

The  indictment  charged  that  the  defendant,  being  admitted  as  a 
legal  voter  at  the  town  meeting  holden  on  the  eleventh  day  of  March, 
1811,  at  Salem,  for  the  choice  of  town  oflicers,  "did  then  and  there 

*  Accord  Pennsylvania  v.  Morrison,  Add.  274  (raising  a  liberty-i>ole,  a  si^n  of 
disaffc-ction  to  the  govurniuent)  ;  Com.  v.  Hoxey,  16  Ma.ss.  386  (disturbing  a  town 
lueetiug).  —  Ed, 


112  COMMONWEALTH   V.   SILSBEE.  [CIIAP.  V. 

wilfully,  fraudulently,  knowingly,  and  designedly  give  in  more  than 
one  vote  for  the  choice  of  selectmen  for  said  town  of  Salem  at  one 
time  of  balloting  ;  to  the  great  destruction  of  the  freedom  of  elections, 
to  the  great  prejudice  of  the  rights  of  the  other  qualified  voters  in  said 
town  o*f  Salem,  to  the  evil  example  of  others  in  like  case  to  offend, 
and  against  the  peace  and  dignity  of  the  Commonwealth  aforesaid,  and 
the  law  of  the  same  in  such  case  made  and  provided." 

After  conviction  the  defendant  moved  in  arrest  of  judgment,  on  the 
ground  of  the  insufficiency  of  the  indictment. 

Dane,  for  the  defendant.  Here  is  no  offence  charged.  The  defend- 
ant put  more  than  one  vote  for  selectmen  into  the  box  at  one  time ; 
and  he  might  well  do  this,  since  not  less  than  three  selectmen  were  to 
be  voted  for. 

The  offence,  if  any  is  described  in  the  indictment,  cannot  be  such 
by  the  common  law,  since  that  law  knows  nothing  of  the  office  of 
selectmen.  If  the  offence  is  created  by  statute,  the  indictment  ought 
to  conclude  contra  formam  statuti ;  and  if  the  conclusion  of  this  be 
considered  so,  it  belongs  to  the  government  to  produce  the  statute 
against  which  the  offence  was  committed.  But  none  such  can  be 
found  ;  and  the  usual  punishment  applied  to  the  act,  that  of  rejecting 
the  party's  vote,  is  probably  all  that  the  government  thought  necessary 
or  convenient. 

By  the  Statute  of  1795,  c  55,  a  fine  not  exceeding  twenty  nor  less 
than  ten  dollars  was  provided  for  such  as  should  give  in  more  than 
one  vote  in  the  election  of  State  officers.  It  appears  that  the  Legisla- 
ture did  not  contemplate  that  offence,  though  of  an  higher  grade  than 
that  here  intended  to  be  prosecuted,  worthy  of  the  severe  punishment 
which  may  by  the  common  law  be  imposed  on  misdemeanors.  Indict- 
ments of  this  kind  are  of  late  origin,  which  is  an  argument  that  they 
do  not  lie  at  common  law. 

No  fraud  is  alleged  in  the  indictment ;  for  as  to  the  general  words 
"  fraudulently,"  &c.,  they  have  no  operation,  being  merely  formal. 

The  Solicitor-General  insisted  that  this  was  a  fraud,  upon  which  the 
common  law  would  animadvert.  It  was  a  direct  infringement  of  the 
highest  political  rights  of  others.  The  indictment,  as  to  its  form,  is 
conformed  to  the  provisions  of  the  statute  of  1800,  c.  74,  respecting 
the  votes  to  be  given  for  the  governor,  &c.  of  the  Commonwealth. 
The  mischief  is  growing  in  various  parts  of  the  Commonwealth,  and 
unless  restrained  will  shortly  destroy  the  purity  of  our  elections,  and 
with  that  will  go  our  most  valued  political  institutions. 

Curia.  There  cannot  be  a  doubt  that  the  offence  described  in  the 
indictment  is  a  misdemeanor  at  common  law.  It  is  a  general  prin- 
ciple that  where  a  statute  gives  a  privilege,  and  one  wilfully  violates 
such  privilege,  the  common  law  will  punish  such  violation.  In  town 
meetings  every  qualified  voter  has  equal  rights,  and  is  entitled  to  give 
one  vote  for  every  officer  to  be  elected.  The  person  who  gives  more 
infringes  and  violates  the  rights  of  the   other  voters,  and  for  this 


SECT.  I.]  COMMONWEALTH   V.   SHARPLESS.  113 

ofifence  the  common  law  gives  the  indictment ;  and  the  conclusion  of 
the  one  at  bar  is  proper  for  the  case. 

The  defendant  teas  adjudged  to  pay  a  fine  of  ten  dollars^ 
ivith  the  costs  of  prosecution. 


I 


COMMONWEALTH   v.    SHARPLESS. 
Supreme  Court  of  Pennsylvania.     1815. 

[Reported  2  Sergeant  tj-  Rawle,  91.] 

TiLGiiMAN,  C.  J.^  This  is  an  indictment  against  Jesse  Sharpless 
and  others  for  exhibiting  an  indecent  picture  to  divers  persons  for 
money.  The  defendants  consented  that  a  verdict  should  go  against 
them,  and  afterwards  moved  in  arrest  of  judgment  for  several  reasons. 

1.  "  That  the  matter  laid  in  the  indictment  is  not  an  indictable 
offence."  It  was  denied,  in  the  first  place,  that  even  a  public  exhibi- 
tion of  an  indecent  picture  was  indictable  ;  but  supposing  it  to  be  so, 
it  was  insisted  that  this  indictment  contained  no  charge  of  a  public 
exhibition.  In  England  there  are  some  acts  of  immorality,  such  as 
adultery,  of  which  the  ecclesiastical  courts  have  taken  cognizance  from 
very  ancient  times,  and  in  such  cases,  although  they  tended  to  the  cor- 
ruption of  the  public  morals,  the  temporal  courts  have  not  assumed 
jurisdiction.  This  occasioned  some  uncertainty  in  the  law  ;  some  dif- 
ficulty in  discriminating  between  the  offences  punishable  in  the  tem- 
poral and  ecclesiastical  courts.  Although  there  was  no  ground  for 
this  distinction  in  a  country  like  ours,  where  there  was  no  ecclesiastical 
jurisdiction,  yet  the  common  law  principle  was  supposed  to  be  in 
force,  and  to  get  rid  of  it  punishments  were  inflicted  by  act  of  assem- 
bly. There  is  no  act  punishing  the  offence  charged  against  the 
defendants,  and  therefore  the  case  must  be  decided  upon  the  prin- 
ciples of  the  common  law.  That  actions  of  public  indecency  were 
always  indictable,  as  tending  to  corrupt  the  public  morals,  I  can  have 
no  doubt;  because,  even  in  the  profligate  reign  of  Charles  II.,  Sir 
Charles  Sedley  was  punished  by  imprisonment  and  a  heavy  fine  for 
standing  naked  in  a  balcony  in  a  public  part  of  the  city  of  London. 
It  is  true  that,  besides  this  shameful  exhibition,  it  is  mentioned  in 
some  of  the  reports  of  that  case  that  he  threw  down  bottles  containing 
offensive  liquor  among  the  people ;  but  we  have  the  highest  authority 
for  saying  that  the  most  criminal  part  of  his  conduct,  and  that  which 
principally  drew  upon  him  the  vengeance  of  the  law,  was  the  exposure 
of  his  person.  For  this  I  refer  to  the  opinion  of  the  judges  in  The 
Queen  v.  Curl,  2  Str.  792  ;  Lord  Mansfield,  in  The  King  ?'.  Sir  Francis 
Blake  Delaval,  &c.,  3  Burr.  1438,  and  of  Blackstone,  in  the  4th  vol- 
ume of  his  Commentaries,  page  64.    Neither  is  there  any  doubt  that  the 

1  Pai-t  of  this  opinion  only  is  given.     Yeates,  J.,  delivered  a  concurring  opinion. 

8 


114  COMMONWEALTH   V.    SHARPLES3.  [CHAP.  V. 

publication  of  an  indecent  book  is  indictable,  although  it  was  once 
doubted  by  the  Court  of  King's  Bench,  in  The  Queen  v.  Reed  (in  the 
sixth  year  of  Queen  Anne).  But  the  authority  of  that  case  was 
destroyed,  upon  great  consideration,  in  The  King  v.  Curl  (1  George 
II.),  2  Str.  788.  The  law  was  in  Curl's  case  established  upon  true 
I  principles.  What  tended  to  corrupt  society  was  held  to  be  a  breach 
'  of  the  peace  and  punishable  by  indictment.  The  courts  are  guardians 
of  the  public  morals,  and  therefore  have  jurisdiction  in  such  cases. 
Hence  it  follows  that  an  offence  may  be  punishable  if  in  its  natura 
and  by  its  example  it  tends  to  the  corruption  of  morals,  although  it  ba 
not  committed  in  public.  In  The  King  v.  Delaval,  &c.,  there  was  a 
conspiracy,  and  for  that  reason  alone  the  court  had  jurisdiction ;  yei 
Lord  Mansfield  expressed  his  opinion  that  they  would  have  had  juris^ 
diction  from  the  nature  of  the  offence,  which  was  the  seduction  of  a 
young  woman  under  the  age  of  twenty-one,  and  placing  her  in  the 
situation  of  a  kept  mistress,  under  the  pretence  of  binding  her  as  an 
apprentice  to  her  keeper  ;  and  he  cited  the  opinion  of  Lord  Hardwicke, 
who  ordered  an  information  to  be  filed  against  a  man  who  had  made  a 
formal  assignment  of  his  wife  to  another  person.  In  support  of  this 
we  find  an  indictment  in  Trem.  PI.  213  (The  King  v.  Dingley),  for 
seducing  a  married  woman  to  elope  from  her  husband.  Now,  to  apply 
these  principles  to  the  present  case.  The  defendants  are  charged 
with  exhibiting  and  showing  to  sundry  persons,  for  money,  a  lewd, 
scandalous,  and  obscene  painting.  A  picture  tends  to  excite  lust  as 
strongly  as  a  writing ;  and  the  showing  of  a  picture  is  as  much  a  pub- 
lication as  the  selling  of  a  book.  Curl  was  convicted  of  selling  a 
book.  It  is  true,  the  indictment  charged  the  act  to  have  been  in  a  pub- 
lic shop,  but  that  can  make  no  difference.  The  mischief  was  no 
greater  than  if  he  had  taken  the  purchaser  into  a  private  room  and 
sold  him  the  book  there.  The  law  is  not  to  be  evaded  by  an  artifice  of 
that  kind.  If  the  privacy  of  the  room  was  a  protection,  all  the  youth 
of  the  city  might  be  corrupted  by  taking  them  one  by  one  into  a 
chamber,  and  there  inflaming  their  passions  by  the  exhibition  of  las- 
civious pictures.  In  the  eye  of  the  law  this  would  be  a  publication, 
and  a  most  pernicious  one.  Then,  although  it  is  not  said  in  the 
indictment  in  express  terms  that  the  defendants  published  the  paint- 
ing, yet  the  averment  is  substantially  the  same,  that  is  to  say,  that 
they  exhibited  it  to  sundry  persons  for  money ;  for  that  in  law  is  a 
publication. 

Ifotion  in  arrest  of  judgment  overruled,  and  judgment  on 
the  verdict} 

^  See  also  the  following  ca.ses :  — 

Publicly  si)eaking  obacene  words.  State  v.  Appling,  25  Mo.  315;  Barker  v.  Com., 
19  Pa.  412. 

Maintaining  obscene  exhibition.  Queen  v.  Saunders,  1  Q.  B.  D.  15;  Piker.  Com.,  2 
Duv.  89. 

Indecent  exposure  of  the  person.     Sydley's  Case,  1  Keble,  620;  Re.x  v.  Gallard,  W. 


SECT.  l1  kanavan's  case.  115     —  )  ^1  ^ 


J> 


KANAVAN'S   CAS^:. 
Supreme  Judicial  Coukt  ok  Maine.     1821. 

[Reported  I  Greenleaf,  226.1 

The  second  count  stated  that  the  defendant  unlawfull}-  and  indecently 
took  the  body  of  [a]  child  and  threw  it  into  the  river,  against  common 
decenc}',  &c.* 

The  defendant  being  convicted  on  the  second  count,  a  motion  was 
made  in  arrest  of  judgment,  on  the  ground  that  the  offence  charged  was 
not  indictable  at  coniinon  law. 

Bv  the  Coukt.  We  have  no  doubt  upon  this  subject,  and  do  not 
liesitate  a  moment  to  pronounce  the  indictment  to  be  good  and  suffi- 
cient, and  that  there  must  be  sentence  against  the  prisoner. 

From  our  childhood  we  all  liave  been  accustomed  to  pay  a  reveren- 
tial respect  to  the  sepulchres  of  our  fathers,  and  to  attach  a  character 
of  sacredness  to  the  grounds  dedicated  and  enclosed  as  the  cemeteries 
of  the  dead.  Hence,  before  the  late  statute  of  ^Massachusetts  was  en- 
acted, it  was  an  offence  at  common  law  to  dig  up  the  bodies  of  those 
who  had  been  buried  for  the  purpose  of  dissection.  It  is  an  outrage 
upon  the  public  feelings,  and  torturing  to  the  afflicted  relatives  of  the 
deceased.  If  it  be  a  crime  thus  to  disturb  the  ashes  of  the  dead,  it 
must  also  be  a  crime  to  deprive  them  of  a  decent  burial,  b}-  a  disgraceful 
exposure,  or  disposal  of  the  bod}'  contrary  to  usages  so  long  sanctioned, 
and  which  are  so  grateful  to  the  wounded  hearts  of  friends  and  mourn- 
ers. If  a  dead  body  ma}'  be  thrown  into  a  river,  it  may  be  cast  into  a 
street ;  if  the  body  of  a  child,  so  the  body  of  an  adult,  male  or  female. 
Good  morals,  decency,  our  best  feelings,  the  law  of  the  land,  —  all  for- 
bid such  proceedings.  It  is  imprudent  to  weaken  the  influence  of  that 
sentiment  which  gives  solemnity  and  interest  to  everything  connected 
with  the  tomb. 

Our  funeral  rites  and  services  are  adapted  to  make  deep  impressions 
and  to  produce  the  best  effects.  The  disposition  to  perform  with  all 
possible  solemnity  the  funeral  obsequies  of  the  departed  is  universal  in 
otir  country  ;  and  even  on  the  ocean,  where  the  usual  method  of  sepultm-e 
is  out  of  the  question,  the  occasion  is  marked  with  all  the  respect  which 
circumstances  will  admit.  Our  legislature,  also,  has  made  it  an  offence 
in  a  civil  officer  to  arrest  a  dead  body  by  any  process  in  his  hands 
against  the  party  while  living ;  it  is  an  affront  to  a  virtuous  and  decent 
public,  not  to  be  endured. 

Kelynge,  163;  Reg.  v.  Rt;ed,  12  Cox,  1;  State  i;.  Rose,  32  Mo.  560;  Britain  v.  State, 
3  Humph.  203. 

Notorious  incoutinency.  Brooks  v.  State,  2  Yerg.  482;  State  v.  Cagle,  2  Humph. 
414;  State  v.  Moore,  1  Swan,  136.     Conf.  State  v.  Brunson,  2  Bail.  149. 

Letting  premises  for  immoral  purjKJse.  Smith  v.  State,  6  Gill,  425;  Com.  v.  Har- 
rington, 3  Pick.  26.     Conf.  Rex  v.  McDonald,  3  Burr.  1645.  —Ed. 

^  Only  so  much  of  the  case  as  relates  to  this  couut  Ls  giveu. 


116  COMMONWEALTH   V.    CALLAGHAN.  [CHAP.  V. 

Tt  is  to  be  hoped  that  punishment  in  this  instance  will  serve  to 
correct  any  mistaken  ideas  which  may  have  been  entertained  as  to 
the  nature  of  such  an  offence  as  this  of  which  the  prisoner  stands 

convicted. 

The  prisoner,  having  been  in  close  confinement  four  months,  was  sen- 
tenced to  a  further  term  of  four  months'  imprisonment.* 


COMMONWEALTH  v.  CALLAGHAN. 
General  Court  of  Virginia.     1825. 

[Reported  2  Virginia  Cases,  460.] 

This  was  a  case  adjourned  by  the  Superior  Court  of  Law  of  Alleghany 
County.  The  case  itself  is  fully  set  forth  in  the  following  opinion  of 
the  General  Court,  delivered  by  Barbour,  J. :  — 

This  is  an  adjourned  case  from  the  Superior  Court  of  Law  for  the 
County  of  Alleghany. 

It  was  an  information  filed  against  Callaghan  and  Hollowa}',  two  of 
the  justices  of  Alleghany,  alleging  in  substance  the  following  charge : 
That  at  a  court  held  for  the  count}-  of  Alleghany,  there  was  an  election 
for  the  office  of  commissioner  of  the  revenue  and  of  clerk  of  said  court, 
when  the  defendants  were  both  present,  and  acting  in  their  official 
character  as  magistrates  in  voting  in  said  election  ;  that  the  defendant 
Callaghan,  in  said  election  for  commissioner  of  the  revenue,  wickedly 
and  corruptly  agreed  to  vote,  and  in  pursuance  of  said  corrupt  agree- 
ment did  vote,  for  a  certain  W.  G.  HoUoway,  to  be  said  commissioner, 
in  consideration  of  the  promise  of  the  defendant  Holloway  that  he 
would  vote  for  a  certain  Oliver  Callaghan  to  be  clerk  of  said  court ; 
and  that  the  defendant  Holloway  in  the  said  election  of  clerk  wickedl}' 
and  corruptly  agreed  to  vote,  and  in  pursuance  of  said  corrupt  agree- 
ment did  vote,  for  a  certain  Oliver  Callaghan  to  be  said  clerk,  in  con- 
sideration of  the  promise  of  the  defendant  Callaghan  that  he  would  vote 
for  the  aforesaid  "\V.  G.  Holloway  to  be  commissioner.  To  this  infor- 
mation the  defendants  demurred  generally,  and  there  was  a  joinder  in 
the  demurrer.  The  Superior  Court  of  Law  of  Alleghany,  with  the 
assent  of  the  defendants,  adjourned  for  novelty  and  difficulty  to  this 
court  the  questions  of  law  arising  upon  the  demurrer  to  the  informa- 
tion, and  particularly  the  following,  namely  :  — 

1  See  Queen  v.  Price,  12  Q.  B.  D.  247  ;  Queen  v.  Stepliens,  13  Q.  B.  D.  331. 

Other  acts  have  been  held  criminal  because  they  tended  to  shock  the  public 
sense  of  morality  or  decency :  Public  drunkenness,  Tipton  v.  State,  2  Yerg.  542  (see 
State  i;.  Walker,  3  Murph.  229).  Disturbing  public  worship,  State  v.  Jasper,  4  Dev. 
323.  Public  profanity,  Goree  v.  State,  71  Ala.  7;  State  v.  Brewington,  84  N.  C.  783  ; 
Young  V.  State,  10  Lee,  165.  Shocking  and  disgusting  exliibition,  Queen  v.  Grey, 
4  F.  &  F.  73.  —  Ed. 


SECT.  I.]  COMMONWEALTH   V.    CALLAGIIAN.  117 

1.  Is  there  any  offence  stated  in  said  information  for  whicli  :iii  infor- 
mation or  indictment  will  lie? 

2.  Is  the  offence  charged  in  the  said  information  within  the  true 
intent  and  meaning  of  the  Act  of  the  General  Assembly  entitled  "  An 
Act  against  buying  and  selling  offices,"  passed  Oct.  19,  1792,  in  page 
55'J,  1st  vol.  Rev.  Code  of  1819? 

3.  If  the  offence  be  within  the  said  act,  is  the  information  filed  in 
this  case  a  good  and  sufficient  information? 

The  first  and  second  questions,  for  the  sake  of  convenience,  will  be 
considered  together. 

It  is  proper  to  premise  that  a  general  demurrer  admits  the  truth  of 
all  facts  which  are  well  pleaded  ;  there  being  such  a  demurrer  in  this 
case,  and  the  information  distinctly  alleging  that  the  defendants,  in 
giving  their  votes  respectively,  acted  wickedly  and  corruptly,  such 
wicked  and  corrupt  motive  will  be  considered  throughout  as  forming  a 
part  of  the  case. 

The  coui-t  are  unanimously  of  opinion  that  the  case  as  stated  in  the 
information  is  not  within  the  true  intent  and  meaning  of  the  Act  of 
Assembly  referred  to  in  the  second  question.  That  act  embraces  two 
descriptions  of  cases:  1.  The  sale  of  an  office  or  the  deputation  of  an 
office ;  2.  The  giving  a  vote  in  appointing  to  an  office  or  the  deputa- 
tion of  office.  It  would  be  within  the  latter  description  that  this  case 
would  fall,  if  within  either ;  but  the  court  are  decidedly  of  opinion  that 
this  case  does  not  fall  within  this  description,  because  the  plain  con- 
struction of  the  statute  is  that  the  penalties  which  it  denounces  are 
incurred  only  l)y  those  who  receive  or  take,  either  directly  or  indirectly, 
an}-  money,  profit,  &c.,  or  the  promise  to  have  any  money,  profit,  «S:c., 
to  their  own  use  or  for  their  own  benefit.  In  this  case  it  appears  from 
the  information  that  the  promise  of  each  of  the  defendants  to  the  other, 
which  constituted  the  consideration  of  the  vote  of  that  other,  and  the 
vote  given  in  consequence  of  such  promise,  inured  not  to  the  benefit  of 
the  defendants  or  either  of  them,  but  to  the  benefit  of  others.  If  indeed 
it  had  been  alleged  in  the  information  that  the  persons  for  whom  the 
votes  were  given,  were,  if  elected,  to  have  held  them  upon  any  agree- 
ment, that  the  defendants  should  in  any  degree  participate  in  their 
profits  or  receive  from  the  holders  of  them  any  benefit  or  advantage, 
the  case  would  have  been  different,  for  then  the  defendants  would  have 
received  a  profit  indirectl}',  and  thus  would  have  fallen  within  the  stat- 
ute ;  but  there  is  no  such  allegation. 

The  court  being  thus  of  opinion  that  this  case  was  not  embraced  by 
the  statute,  but  at  the  same  time  considering  that  that  system  of  crim- 
inal jurisprudence  must  be  essentially  defective  which  had  provided  no 
punishment  for  acts  such  as  are  charged  in  the  information,  and  which 
merit  the  reprehension  of  all  good  men,  were  led  to  inquire  whether  the 
acts  charged  in  the  information  did  not  constitute  an  offence  at  common 
law ;  and  they  are  of  opinion  that  they  do. 

In  relation  to  those  offences  which  rise  to  the  grade  of  felony  there 


118  COMMOXVrEALTH   V.   CALLAGHAN.  [CHAP.  V. 

is  usu.nlh',  particularh'  in  the  designation  of  them  bj  name,  an  accurac}' 
in  the  definition  ;  as,  for  example,  murder,  burglary,  arson,  &c.,  in 
each  of  which  the  terra  ex  vi  termini  imports  the  constituent  of  the 
offence  ;  but  in  the  general  classification  of  crimes  whatever  is  not 
felon}-  is  misdemeanor.  In  relation  to  these,  then,  they  are  not  only 
numerous  but  indefinitely  diversified,  comprehending  every  act  which, 
whilst  it  fixlls  below  the  grade  of  felony,  is  either  the  omission  of  some- 
thing comiiianded  or  the  commission  of  something  prohibited  bylaw. 
As  to  these  the  law  can  do  no  more  than  lay  down  general  principles, 
and  it  belongs  to  the  courts  of  the  country  to  apply  those  principles  to 
the  particular  cases  as  they  occur,  and  to  decide  whether  they  are  or 
are  not  embraced  by  them.  Thus  the  law,  as  a  general  proposition, 
prohibits  the  doing  of  any  act  which  is  contra  bonos  mores.  The  par- 
ticular acts  which  come  up  to  this  description  it  is  impossible  to  include 
in  any  precise  enumeration  ;  they  must  be  decided  as  they  occur,  by 
applying  this  principle  to  them  as  a  standard.  Thus,  again,  it  is  now 
established  as  a  principle  that  the  incitement  to  commit  a  crime  is  itself 
criminal  under  some  circumstances.  6  East,  46-4 ;  2  East,  5.  As  for 
example,  the  mere  attempt  to  stifle  evidence,  though  the  persuasion 
should  not  succeed.  Cases  of  this  kind  may  be  as  various  as  the  vary- 
ing combinations  of  circumstances. 

To  come  more  immediately  to  the  present  case,  we  hold  it  to  be  a 
sound  doctrine  that  the  acceptance  of  every  office  implies  the  tacit 
agreement  on  the  part  of  the  incumbent  that  he  will  execute  its  duties 
with  diligence  and  fidelity.  5  Bac.  Abr.  210,  Offices  and  Officers,  Let- 
ter INI.  We  hold  it  to  be  an  equally  sound  doctrine  that  all  officers  are 
punishable  for  corruption  and  oppressive  proceedings,  according  to  the 
nature  and  heinousness  of  the  offence,  either  by  indictment,  attach- 
ment, action  at  the  suit  of  the  party  aggrieved,  loss  of  their  offices,  &c. 
5  Bac.  Abr.  212,  Letter  N. 

And  further,  that  all  wilful  breaches  of  the  duty  of  an  office  are  for- 
feitures of  it,  and  also  punishable  by  fine  (Co.  Litt.  233,  234),  because 
every  oflSce  is  instituted,  not  for  the  sake  of  the  officer,  but  for  the  good 
of  another  or  others  ;  and,  therefore,  he  who  neglects  or  refuses  to 
answer  the  end  for  which  his  oflSce  was  ordained  should  give  way  to 
others,  and  be  punished  for  his  neglect  or  oppressive  execution. 

Let  us  apply  these  principles  to  the  present  case.  The  defendants 
were  justices  of  the  peace,  and  as  such  held  an  oflSce  of  high  trust  and 
confidence.  In  that  character  they  were  called  upon  to  vote  for  others, 
for  oflSces  also  implying  trust  and  confidence.  Their  duty  required 
them  to  vote  in  reference  only  to  the  merit  and  qualifications  of  the 
oflTicers,  and  3'et  upon  the  pleadings  in  this  case  it  appears  that  they 
wickedl}'  and  corruptly  violated  tlieir  duty  and  betrayed  the  confidence 
reposed  in  them,  by  voting  under  the  influence  of  a  corrupt  bargain  or 
reciprocal  promise,  by  which  they  had  come  under  a  reciprocal  obliga- 
tion to  vote  respectively  for  a  particular  person,  no  matter  how  inferior 
the  qualifications  to  thoir  competitors.      It  would  seem,  then,  upon 


SECT.  I.]  COMMONWEALTH   V.   WINO.  119 

these  general  principles  that  the  oflencc  in  the  information  is  indictable 
at  common  law.  But  there  are  authorities  which  apply  particularly  to 
the  case  of  justices.  In  1  BV  Com.  351,  n.  17,  Christian,  it  is  said  if  a 
magistrate  abuse  his  authority  from  corrupt  motives  he  is  punishable 
criminally  by  indictment  or  information. 

Again,  where  magistrates  have  acted  partially,  maliciousi}-,  or  cor- 
ruptly, they  are  liable  to  an  indictment.  1  Term  Rep.  692  ;  1  Burr. 
[)'>C} ;  3  Burr.  1317,  1716,  1786  ;  1  Wils.  7.  An  instance  of  their  acting 
partially  is  tliat  of  their  refusing  a  license  from  motives  of  partiality, 
the  form  of  the  indictment  for  which  is  given  in  2  Chitty's  Crim.  Law, 
2r)3. 

We  are  then  of  opinion,  for  the  reasons  and  upon  the  authorities 
aforesaid,  that  the  offence  stated  in  the  information  is  a  misdemeanor 
at  common  law  for  which  an  information  will  lie,  but  that  it  is  not 
within  the  statute  referred  to. 

In  answer  to  the  third  question  we  are  of  opinion  that  the  informa- 
tion is  a  good  and  sufficient  one. 

All  which  is  ordered  to  be  certified  to  the  Superior  Court  of  Law  for 
Alleghany  County. 


COMMONWEALTH   r.   WING. 

Supreme  Judicial  Court  of  Massachusetts.     1829. 

[Reported  9  Pickering,  1.] 

The  defendant  was  indicted  for  maliciously  discharging  a  gun, 
whereby  a  woman,  named  M.  A.  Gifford,  was  thrown  into  convul- 
sions and  cramps.  It  was  averred  that  the  defendant  well  knew  that 
she  was  subject  to  such  convulsions  and  cramps  upon  the  firing  of  a 
gun,  and  that  at  the  time  when  the  offence  was  committed,  he  was 
warned  and  requested  not  to  fire. 

The  case  was  tried  before  Wilde,  J. 

It  was  proved  that  M.  A.  Gifford  was  severely  affected  with  a 
nervous  disorder,  and  that  she  was  uniformly  thrown  into  a  fit  upon 
hearing  a  gun,  thunder,  or  any  other  sudden  noise,  or  by  hearing  the 
words  "gun,  ammunition,"  «S:c.  mentioned.  It  was  also  proved  that 
she  had  been  in  this  situation  for  more  than  six  years. 

It  was  further  proved  that  the  defendant  discharged  the  gun  in  a 
highway,  for  the  purpose  of  killing  a  wild  goose,  at  a  place  two  or 
three  rods  from  the  house  in  which  M.  A.  Gifford  then  lived;  which 
house  was  situated  on  a  neck  of  land  where  citizens  had  from  time 
immemorial  resorted  for  the  purpose  of  fowling.  And  it  was  also 
proved  that  immediately  before  the  defendant  discharged  his  gun.  he 
was  requested  by  M.  A.  Gifford's  father  not  to  fire,  as  it  would  throw 


120  COMMONWEALTH   V.   WING.  [CHAP.  V. 

his  daughter  into  fits ;  and  evidence  also  was  introduced  showing  tho 
defendant's  previous  knowledge  of  the  effect  produced  on  her  by  the 
report  of  a  gun,  especially  when  discharged  near  to  her. 

The  defendant  contended  that  as  he  was  engaged  in  a  lawful  occu- 
pation, and  as  M.  A.  Gifford  had  for  so  long  a  time  been  afflicted 
with  what  had  probably  become  an  incurable  disease,  he  was  not 
liable  to  punishment  for  the  commission  of  the  act  alleged  in  the 
indictment. 

The  judge  instructed  the  jury  that  if  they  believed  that  the  defen- 
dant knew,  or  had  good  reason  to  believe,  that  the  consequences 
above  mentioned  would  be  produced  by  the  firing  of  the  gun,  and  had 
notice  to  that  effect  immediately  before  the  firing,  they  should  return 
a  verdict  of  guilty ;  which  they  did  accordingly.  If  this  instruction 
was  wrong,  a  new  trial  was  to  be  granted. 

Warren  for  the  defendant.  The  indictment  is  for  an  alleged  of- 
fence, which  is  technically  called  a  nuisance.  It  cannot  be  sustained, 
because  the  act  done  was  not  to  the  annoyance  of  the  citizens  gener- 
ally. Bac.  Abr.  Nuisance  B ;  Rex  v.  White,  1  Burr.  333  ;  Rex  v. 
Combrune,  1  Wils.  301 ;  Rex  v.  AVheatly,  2  Burr.  1126  ;  Rex  v.  Lloyd, 
4  Esp.  200 ;  Arnold  v.  Jefferson,  3  Salk.  248.  The  act,  in  itself,  was 
neither  malum  in  se  nor  malum  prohibitum.  The  defendant  was  in 
the  exercise  of  a  lawful  employment,  and  the  injury  was  to  a  single 
person.  Her  remedy  is  by  action ;  the  Commonwealth  is  not  inter- 
ested in  the  matter.  The  dictum  of  Sewall,  C.  J.,  in  Cole  v.  Fisher, 
11  Mass.  R.  139,  —  that  where  tlie  discharge  of  a  gun  is  unnecessary, 
a  matter  of  idle  sport  and  negligence,  and  still  more  where  it  is  ac- 
companied with  purposes  of  wanton  and  deliberate  mischief,  the 
party  is  liable  as  a  public  offender,  —  does  not  apply  to  this  case  ;  for 
the  act  of  the  defendant  does  not  come  within  either  of  those  de- 
scriptions, and  it  was  not  done  to  the  common  danger  of  the  citizens, 
but  on  a  neck  of  land  where  citizens  had  immemorially  resorted  for 
the  purpose  of  fowling. 

The  nature  of  the  disease  is  such  that  a  citizen  was  not  obliged, 
from  regard  to  it,  to  refrain  from  his  usual  lawful  pursuits.  Where 
a  person  is  suffering  under  a  complaint  which  is  aggravated  by  the 
transaction  of  the  ordinary  business  of  society,  it  is  better  that  he 
should  suffer  than  that  the  business  of  the  community  should  be  sus- 
pended. It  is  certainly  better  that  he  should  be  left  to  that  remedy 
which  the  law  gives  every  man  for  a  violation  of  his  private  rights. 
If  the  above  doctrine  is  not  sound  as  applied  to  temporary  diseases, 
it  is  when  the  affection  is  of  so  long  standing  as  in  this  case.  An 
action  cannot  be  sustained  for  an  injury  which  the  party  might  have 
avoided  by  ordinary  care.  It  was  the  duty  of  the  woman  to  have 
removed  from  a  neighborhood  where  the  citizens  have  immemorially 
pursued  an  occupation  which  injuriously  affected  her  health.  Butter- 
field  V.  Forrester,  11  East,  60  ;  Smith  v.  Smith,  2  Pick.  621 ;  Rex  v. 
Cross,  2  Carr.  &  Payne,  483. 


SECT.  I.]  PEOPLE   V.   JACKSON.  121 

Morton^  Attorney-General,  contra^  cited  4  Bl.  Com.  197 ;  and  Cole 
V.  Fisher,  11  Mass.  R.  139. 

Paukek,  C.  J.,  delivered  the  opinion  of  the  court.  If  the  indict- 
ment were  for  a  nuisance,  the  authorities  cited  by  the  defendant's 
counsel  would  clearly  show  that  it  could  not  be  sustained ;  for  the 
most  that  could  be  made  of  it  would  be  a  private  nuisance,  for  which 
an  action  on  the  case  only  would  lie.  But  we  think  the  offence  de- 
scribed is  a  misdemeanor,  and  not  a  nuisance.  It  was  a  wanton  act 
of  mischief,  necessarily  injurious  to  the  person  aggrieved,  after  full 
notice  of  the  consequences,  and  a  request  to  desist.  The  jury  have 
found  that  the  act  was  maliciously  done. 

In  the  case  of  Cole  v.  Fisher,  11  Mass.  R.  137,  Chief  Justice  Sewall, 
in  delivering  the  opinion  of  the  court,  speaking  of  the  discliarging  of 
guns  unnecessarily,  says,  if  it  is  a  matter  of  idle  sport  and  negligence, 
and  still  more  when  the  act  is  accompanied  with  purposes  of  wanton 
or  deliberate  mischief,  the  guilty  party  is  liable,  not  only  in  a  civil 
action,  but  as  an  offender  against  the  public  peace  and  security,  is 
liable  to  be  indicted,  «S:c. 

Now  the  facts  proved  in  the  case,  namely,  the  defendant's  previous 
knowledge  that  the  woman  was  so  affected  by  the  report  of  a  gun  as 
to  be  thrown  into  fits,  the  knowledge  he  had  that  she  was  within 
hearing,  the  earnest  request  made  to  him  not  to  discharge  his  gun, 
show  such  a  disregard  to  tlie  safety  and  even  the  life  of  the  afflicted 
party,  as  makes  the  firing  a  wanton  and  deliberate  act  of  mischief. 

Judgment  on  the  verdict.^ 


PEOPLE   V.   JACKSON. 
Supreme  Court  of  New  York.     1846. 

[Reported  3  Denio,  101.] 

Error  to  Albany  maj^or's  court.  The  defendant  was  indicted  in 
the  Albany  oyer  and  terminer,  and  the  indictment  was  sent  into  the 
mayor's  court.  The  first  count  charged  that  the  defendant  on  the 
1st  of  May,  1843,  and  on  divers  other  days  and  times,  &c.,  with  force 
and  arms,  at,  &c.,  unlawfully  did  keep  and  maintain  a  certain  room 
and  place  for  the  sale  of  tickets  in  lotteries  not  authorized  by  any  law 
of  the  State  of  New  York,  situate  in  the  city  of  Albany  aforesaid,  to 
the  great  damage  and  common  nuisance  of  all  the  good  people  of  the 
State,  and  against  the  peace  of  the  people  and  their  dignity.  Second 
count,  that  the  defendant  did  keep  and  maintain  a  certain  common, 
ill-governed,  and  disorderly  room  for  the  sale  of  tickets  in  certain  lot- 
teries unauthorized    by  law ;    and    in  said   room  for  his   own   lucre 

1  But  see  Rogers  v.  Elliott,  146  Mass.  349      Compare  State  v.  Buckman,  8  N.  H 
203 ;  People  v.  Blake,  1  Wheel.  490.  —  Ed. 


V^^.. 


122  PEOPLE  V.   JACKSON.  [CHAP.  V, 

and  gain  did  sell  to  divers  persons,  as  well  men  as  women,  certain 
tickets  of  and  in  certain  lotteries,  which  said  lotteries  were  not  au- 
thorized b}'  law,  to  the  great  damage  and  common  nuisance  of  all  the 
good  people,  &c.  Third  count,  that  the  defendant  a  certain  common 
gaming-house  there  situate,  for  his  own  lucre  and  gain,  unlawfully 
and  unjustly  did  keep  and  maintain ;  and  in  the  said  last-mentioned 
gaming-house  certain  tickets  in  lotteries  unauthorized  by  law  did 
furnish  and  sell  to  divers  persons  (whose  names  are  to  the  jurors 
aforesaid  unknown),  to  the  great  damage  and  common  nuisance  of 
the  good  people,  &c.  The  defendant  demurred  to  the  indictment ; 
and  the  court  below  gave  judgment  in  his  favor.  The  people  bring 
error. 

E.  C.  Litchfield  (district  attorney),  for  the  people. 
H.  G.  WJieaton,  for  the  defendant. 

By  the  Court,  Bronson,  C.  J.  We  have  not  enacted  the  Statute  33 
H.  8,  c.  9,  §  11,  against  gaming-houses.  See  1  Hawk.  P.  C.  721, 
Curwood's  ed.  Still,  I  have  no  doubt  that  the  keeping  of  a  common 
gaming-house  is  indictable  at  the  common  law.  The  King  v.  Rogier, 
1  B.  &  C.  272  ;  The  People  v.  Sergeant,  8  Cowen,  139.  It  is  illegal, 
because  it  draws  together  evil-disposed  persons,  encourages  excessive 
gaming,  idleness,  cheating,  and  other  corrupt  practices,  and  tends  to 
public  disorder.  Nothing  is  more  likely  to  happen  at  such  places  than 
breaches  of  the  public  peace.  1  Hawk.  P.  C.  693,  §  6  ;  Roscoe,  Cr. 
Ev.  663,  ed.  of  '36  ;  1  Russ.  on  Cr.  299,  ed.  of  '36  ;  3  Chit.  Cr.  L. 
673,  note,  ed.  of  '19  ;  Arch.  Cr.  PI.  600,  ed.  of  '40.  But  it  is  not 
so  of  a  house  or  room  for  the  illegal  sale  of  lottery  tickets.  Men  do 
not  congregate  at  such  places.  On  the  contrary,  they  go  in  one  at  a 
time,  and  the  business  is  transacted  behind  screens  and  in  corners, 
where  there  is  no  witness.  There  is  enough  of  evil  in  it,  but  no 
tendency  to  breaches  of  the  public  peace.  It  is  true  that  an  un- 
authorized lottery  is  a  public  nuisance.  1  R.  S.  665,  §  26.  But  a 
place  for  the  sale  of  tickets  is  not  a  lottery.  Keeping  an  office  or 
other  place  for  registering  tickets  in  an  unauthorized  lottery  is  ex- 
pressly forbidden  (§  34) ;  but  there  is  no  prohibition  against  keeping 
an  office  or  place  for  the  sale  of  tickets.  I  see  no  principle  on  which 
the  first  count  can  be  supported. 

The  third  count  charges  that  the  defendant  kept  a  common  gaming- 
house ;  but  it  tells  what  the  jurors  meant  by  a  gaming-house  ;  to  wit, 
a  place  where  tickets  in  unauthorized  lotteries  were  sold.  There  is 
no  precedent  for  such  a  count.  But  it  is  said  that  the  last  part  of 
the  count  may  be  rejected;  and  then  the  charge  will  be  that  the 
defendant  kept  a  common  gaming-house.  There  are  some  dicta  in 
the  books  to  the  effect  that  such  a  general  charge  would  be  enough. 
The  King  v.  Rogier,  1  B.  &  C.  272,  per  Holroyd,  J. ;  Commonwealth 
V.  Pray,  13  Pick.  359,  per  Morton,  J.  And  see  The  King  v.  Dixon,  10 
Mod.  335;  Rex  r.  Mason,  2  Leach,  548.  The  precedents  are  the 
other  way.    They  go  beyond  the  general  charge,  and  allege  that  the 


SECT.  I  ]  UNITKD    STATES   V.   HING    QUONG   CHOW.  123 

defendant  did  cause  and  procure  divers  idle  and  evil-disposed  persons 
to  frequent  tiie  house,  and  play  at  illegal  games,  &c. ;  and  sometimes 
disturbances  and  breaches  of  the  peace  are  added.  Archb.  Cr.  PI. 
fiOO  ;  3  Chit.  Cr.  L.  673,  4.  I  do  not  think  the  general  charge  would 
be  enough  in  an  indictment  at  the  common  law.  But  if  we  assume 
that  it  would,  still  this  count  cannot  be  supported  ;  for  it  does  not 
stop  with  the  general  allegation,  but  goes  on  to  tell  what  was  meant 
l)y  it. 

The  second  count  charges  the  keeping  of  an  ill-governed  and  dis- 
orderly room  for  the  sale  of  tickets.  The  pleader  has  substituted  the 
sale  of  tickets  for  such  things  as  are  usually  done  in  bawdy-houses. 
This  count  is  worse  than  the  others.  Judgment  affirmed. 


UNITED   STATES   v.   HING   QUONG  CHOW. 
United  States  Circuit  Court,  Eastern  District,  Louisiana.     1892. 

[Reported  53  Federal  Rejmter,  233.] 

Billings,  District  Judge.  The  defendant  is  before  the  court  under 
an  indictment  in  which  he  is  charged  with  having  come  into  the  United 
States  without  lawful  right  so  to  do.  There  are  two  counts,  but  they 
substantially  set  forth  the  same  offence. 

The  statute  relied  upon  by  the  prosecuting  officer  is  found  in  the 
fourth  section  of  the  Act  of  Congress  of  May  5,  1892.  That  statute, 
as  it  seems  to  me,  deals  with  the  coming  in  of  Chinese  as  a  police 
matter,  and  is  the  re-enacting  and  continuing  of  what  might  be 
termed  a  "  quarantine  against  Chinese."  They  are  treated  as  would 
be  infected  merchandise,  and  the  imprisonment  is  not  a  punishment 
for  a  crime,  but  a  means  of  keeping  a  damaging  individual  safely  till 
he  can  be  sent  away.  In  a  summary  manner,  and  as  a  political  mat- 
ter, this  coming  in  is  to  be  prevented.  The  matter  is  dealt  with  as 
political,  and  not  criminal.  The  words  used  are  those  which  are 
ordinarily  found  in  criminal  statutes ;  but  the  intent  of  Congress  is, 
as  it  seems  to  me,  unmistakable.  "What  is  termed  "  being  convicted 
and  adjudged"  means  "  found,"  '*  decided"  by  the  commissioner,  rep- 
resenting not  tlie  criminal  law,  but  the  political  department  of  the 
government.     Section  3  is  as  follows  :  — 

"That  any  Chinese  person,  or  person  of  Chinese  descent,  arrested 
under  the  provisions  of  this  act  or  the  acts  hereby  extended,  shall  be 
adjudged  to  be  unlawfully  within  the  United  States,  unless  such  per- 
son shall  establish  by  aOirmative  proof,  to  the  satisfaction  of  such 
justice,  judge,  or  commissioner,  his  lawful  right  to  remain  in  the 
United  States." 

Then  follows  the  section  relied  upon  as  authorizing  this  indict- 
ment, —  section  4. 


124  UNITED   STATES   V.   HING   QUONG   CHOW.  [CHAP.  V. 

"  That  any  such  Chinese  person  or  person  of  Chinese  descent,  con- 
victed and  adjudged  to  be  not  lawfully  entitled  to  be  or  remain  in  the 
United  iStates,  shall  be  imprisoned  at  hard  labor  for  a  period  not  ex- 
ceeding one  year,  and  thereafter  removed  from  the  United  States,  as 
hereinbefore  provided," 

It  is  to  be  observed  that  by  section  3  the  finding  is  to  be  against  the 
Chinese,  unless  he  disproves  the  allegation  that  he  is  here  unlawfully. 
The  burden  of  proof  is  expressly  put  on  him,  and,  unless  he  proves 
to  the  satisfaction  of  the  officer  his  lawful  right  to  remain,  he  is  to  be 
adjudged  to  be  here  unlawfully.  By  section  4,  it  is  this  finding  which 
is  to  be  followed  by  the  consequence  which,  it  is  urged,  authorizes  a 
sentence  under  a  criminal  law.  I  cannot  believe  this  was  the  intent 
of  Congress.  A  reversal  of  the  presumption  of  conduct  or  presence 
being  lawful  might  be  introduced  into  procedures  which  were  political 
in  character,  and  assimilated  to  those  relating  to  quarantine ;  but  it 
seems  to  me  well-nigh  impossible  that  Congress  should  have  intended 
that  in  proceedings  in  their  nature  criminal  there  should  be  the  pre- 
sumption of  guilt,  and  that  the  accused  should  be  found  guilty  unless 
he  proves  himself  to  be  innocent.  The  whole  proceeding  of  keeping 
out  of  the  country  a  class  of  persons  deemed  by  the  sovereign  to  be 
injurious  to  the  state,  to  be  eflfective  of  its  object,  must  be  summary 
in  its  methods  and  political  in  its  character.  It  could  have  no  place 
in  the  criminal  law,  with  its  forms  and  rights  and  delays.  After  the 
unlawful  presence  of  the  alien  is  determined,  he  must  be  sent  back  to 
his  country  by  the  Treasury  Department  at  Washington.  To  prevent  an 
unreasonable  and  possibly  oppressive  detention  it  must  be  within  one 
year.  Meanwhile  he  must  keep  from  entering  the  community  of  the 
people  of  the  United  States,  and  therefore  he  is  to  be  imprisoned.  To 
prevent  expense  to  the  government,  and  as  a  sanitary  matter,  he  is  to 
be  made  to  work.  This,  it  seems  to  me,  is  the  meaning  of  the  clause 
relied  upon  to  authorize  trial  and  punishment  for  a  crime. 

There  is  nothing  in  the  statute  declaring  that  it  shall  be  a  crime  or 
a  misdemeanor  for  a  Chinese  to  come  into  the  country.  The  unlaw- 
fulness is  not  made  the  basis  of  criminal  procedure  or  detention,  but 
rather  is  made  the  warrant  to  send  him  back.  The  imprisonment 
spoken  of  in  the  statute  is  that  which  is  necessary  to  effectuate  his 
return.  It  seems  to  me  that  section  4  deals  with  proceedings  before 
the  commissioner  conducting  an  examination  which  is  political  and 
not  criminal,  and  amounts  to  a  direction  to  him  and  to  the  authorities 
who  conduct  the  transportation  or  removal  back  to  China,  and  is  two- 
fold :  First,  that  a  Chinese  adjudged  to  be  here  unlawfully  shall  be 
removed  within  a  year ;  second,  that  till  removal  he  shall  be  kept  in 
prison  and  made  to  work. 

In  accordance  with  these  views,  I  must  direct  that  this  indictment 
be  quashed,  and  that  the  defendant  be  remanded  to  the  custody  of  the 
commissioner,  to  be  dealt  with  according  to  law. 


SECT.  II.]  REX   V.   SUTTON.  125 

SECTION  II. 

Incomplete  Acts. 

^  REX  V.    SUTTON. 

King's  Bencu.     1736. 

[Reported  Cases  temp.  Hardwicke,  370.]  * 

TnE  defendant  was  indicted,  for  that  being  a  person  of  evil  fame 
and  reputation,  on  tlie  2oth  day  of,  &c.,  witliout  any  lawful  authority, 
[he]  had  in  his  custody  and  possession  two  iron  stamps,  each  of  which 
would  make  or  impress  the  figure,  resemblance,  and  similitude  of  one 
of  the  sceptres  made  and  imprest  upon  the  current  gold  coin  of  this 
kingdom,  called  half-guineas,  with  an  intent  to  make  the  impression  of 
sceptres  on  divers  pieces  of  silver  coin  of  this  realm,  called  sixpences, 
and  to  color  such  pieces  of  the  color  of  gold,  and  fraudulently  to 
utter  them  to  his  Majesty's  subjects,  for  and  as  pieces  of  lawful  and 
current  gold  coin  of  this  realm,  called  half-guineas,  against  the  peace 
of  our  Lord  the  King,  his  crown  and  dignity.  And  the  indictment 
further  sets  forth,  that  the  defendant,  the  day  and  year  aforesaid,  in 
the  said  county  of  Northampton,  unlawfully  had  in  his  custody  and 
possession  one  piece  of  silver,  colored  over  with  certain  metal  pro- 
ducing the  color  of  gold,  and  feloniously  made  to  resemble  a  piece  of 
the  current  coin  of  this  realm,  commonly  called  a  half-guinea,  with 
intent  to  utter  the  said  piece  so  colored  and  feloniously  made  to  re- 
semble a  half-guinea  to  some  of  his  Majesty's  subjects  for  and  as  a 
piece  of  lawful  and  current  gold  coin  of  this  realm,  called  a  half- 
guinea  (he,  the  said  defendant,  then  and  there  well  knowing  the  said 
piece  to  be  silver  coin  colored  and  falsely  made),  to  the  evil  example 
of  all  others,  and  against  the  peace  of  our  Lord  the  King,  his  crown 
and  dignity. 

The  defendant  was  tried  upon  this  indictment  at  the  last  summer 
assizes,  and  found  guilty,  before  my  Lord  Hardwicke,  C.  J. ;  and  he 
having  some  doubt  what  the  oflfence  was,  the  defendant  was  brought 
up  last  Michaelmas  term  by  habeas  corpus,  and  committed  to  Newgate, 
and  the  indictment  removed  into  the  King's  Bench  by  certiorari,  for 
the  opinion  of  the  court.     And  Lord  Hakdavicke,  C.  J.,  then  said  : 

As  to  the  first  part  of  the  indictment,  I  doubted  whether  it  was  not 
high  treason  within  the  Stat.  8  &  9  Will.  III.  c.  26,  s.  6 ;  but  it  is 
not  at  all  clear  it  would  be  so,  because  this  is  only  to  stamp  part  of 
one  side  of  the  coin,  viz.,  putting  sceptresl"  Then  it  is  a  misdemeanor 
at  common  law,  and  it  did  not  occur  to  me  that  having  in  one's  cus- 
tody with  an  intent,  without  any  act  done,  was  a  misdemeanor.     As  to 

»  s.  c.  2  Stra,  1074. 


126  REX  V.    SUTTON.  [CHAP.  V. 

the  second  part,  I  doubted  whether  any  precedent  could  be  found  to 
show  that  the  bare  having  counterfeit  money  in  one's  possession,  with 
intention  to  utter  it,  without  uttering  it,  was  an  offence.^ 

For  the  defendant  it  was  argued,  that  the  common  law  takes  no 
notice  of  a  bare  intention,  as  a  crime,  unless  coupled  with  some  overt 
act ;  and  therefore,  though  in  the  time  of  Edw.  III.  an  intention  to  rob 
was  a  felony,  yet  even  then,  as  appears  by  3  Inst.  fo.  5,  there  must 
have  been  some  overt  act  to  show  that  intention.  So  in  Bacon's  Case, 
1  Sid.  230,  and  1  Lev.  146,  though  an  intention  to  kill  the  Master  of 
the  Rolls  was  adjudged  a  misdemeanor,  yet  there  was  an  overt  act, 
viz.,  a  reward  offered  by  the  defendant  for  doing  it:  so  in  Holmes's 
Case,  Cro.  Car.  376,  where  burning  his  house  with  an  intention  to  burn 
his  neighbor's  was  held  a  misdemeanor  ;  yet  thei'e  was  an  act  joined 
to  the  evil  intention,  viz.,  the  burning  his  own  house.  So  in  the  case 
of  The  King  v.  Cooper,  5  Mod.  206,  and  Skinner,  637,  where  an  inten- 
tion to  assist  the  king's  enemies  was  held  a  misdemeanor ;  yet  there 
was  an  overt  act  laid,  viz.,  hiring  a  boat  for  that  purpose.  But  this 
indictment  is  really  nothing  more  than  for  an  intention  to  make  an 
impression  with  such  stamps  as  he  had  in  his  custody  ;  and  a  man  may 
be  possessed  of  a  thing  without  having  done  anything  to  acquire  the 
po.ssession ;  and  the  bare  having  a  thing  is  not  unlawful,  unless  made 
use  of,  or  unless  such  bare  possession  is  made  a  crime  by  a  positive 
law,  as  in  the  case  of  the  Statute  of  Will.  HI.  [c.  26]. 

Per  Cur.  viz.,  Page,  Probvn,  and  Lee,  JJ.  Judgment  must  be  given 
against  the  defendant. 

Lee,  J.  It  is  certain  that  a  bare  intention  is  not  punishable ;  and 
yet  when  joined  with  acts  whose  circumstances  may  be  tried,  it  is  so ; 
so  an  action  innocent  in  itself  may  be  made  punishable  by  an  inten- 
tion joined  to  it;  as  loading  wool  with  intention  to  transport  it,  as 
Lord  Hale  says  in  his  Hist.  Plac.  Coron.  vol.  i.  p.  229.  In  this  case  the 
indictment  is  for  unlawfully  having  in  his  custody  stamps  capable  of 
inaking  impression  of  sceptres,  with  intent  to  make  such  impression : 
now  the  Statute  of  8  &  9  Will.  III.  [c.  26j  has  considered  the  having 
as  an  act ;  for,  by  the  statute,  it  is  high  treason  to  have  [knowingly 
any]  instrument,  &c.,  in  his  possession  ;  and  though  the  word  "  know- 
ingly "  is  added,  yet  that  is  an  act  of  the  mind  only ;  and  the  only  act 
capable  of  trial  in  the  offence  against  the  statute  is  the  having  in  pos- 
session. All  that  is  necessary  in  this  case  is  an  act  charged,  and  a 
criminal  intention  joined  to  the  act.^ 

The  court  gave  judgment  that  the  defendant  do  stand  in  the  pillory 
at  Charing-cross  ;  and  in  consideration  of  his  poverty  and  long  impris- 
onment hitherto,  that  he  do  pay  a  fine  of  Qs.  8d.  and  be  imprisoned  for 
six  months. 

1  The  argument  for  the  prosecution  is  omitted. 
a  But  see  Rex  i;.  Heath,  Russ  &  Ry.  184.  —Ed. 


tiECr.  II.]  RESPUBLICA   V.   MALIN.  127 


REX  V.  RODERICK. 
Stafford  Assizes.     1837. 

[Reported  7  C.  <j-  P.  795.] 

Misdemeanor.  The  first  couut  of  the  iudictment  charged  the  pris- 
oner with  uuh\wfully  knowing  a  chikl  under  the  age  of  twelve  years. 
Second  count,  for  attempting  so  to  do.  Third  count,  for  a  common 
assault. 

F.  V.  Lee^  for  the  prisoner,  objected  that  an  attempt  to  commit  a 
statutory  misdemeanor  was  not  a  misdemeanor. 

Godson,  for  the  prosecution,  cited  the  case  of  Rex  v.  Butler,  6  C.  &  P. 
368. 

Parke,  B.  If  this  offence  is  made  a  misdemeanor  by  statute,  it  is 
made  so  for  all  purposes.  There  are  many  cases  in  which  an  attempt 
to  commit  a  misdemeanor  has  been  held  to  be  a  misdemeanor ;  and  an 
attempt  to  commit  a  misdemeanor  is  a  misdemeanor,  whether  the  offence 
is  created  by  statute  or  was  an  offence  at  common  law. 

Verdict,  guilty. 


RESPUBLICA  V.  MALIN. 
Oyer  and  Terminer,  Philadelphia.     1778. 

[Reported  1  Dallas,  33.] 

Indictment  for  high  treason.^  The  prisoner,  mistaking  a  corps  of 
American  troops  for  British,  went  over  to  them.  And  now  the  Attor- 
ney-General offered  evidence  of  words  spoken  by  the  defendant,  to 
prove  this  mistake,  and  his  real  intention  of  joining  and  adhering  to 
the  enemy. 

By  the  Court.  No  evidence  of  words  relative  to  the  mistake  of 
the  American  troops  can  be  admitted ;  for  any  adherence  to  them, 
though  contrary  to  the  design  of  the  party,  cannot  possibly  come 
within  the  idea  of  treason. 

*  The  statement  of  the  case  is  abridged,  and  part  only  of  the  opinion  is  given. 


128  WALSH   V.   PEOPLE.  [CHAP.  V. 


WALSH  V.  PEOPLE. 
Supreme  Court  of  Illinois.     1872. 

[Reported  65  Illinois,  58.] 

Mr.  Justice  Thornton  delivered  the  opinion  of  the  court :  — 

The  defendant  below  was  an  alderman  of  the  Common  Council  of 
the  city  of  Chicago.  As  such,  he  was  indicted  for  a  proposal,  made 
by  himself,  to  receive  a  bribe  to  influence  bis  action  in  the  discharge 
of  his  duties. 

The  indictment  is,  in  form,  an  indictment  at  common  law  ;  and  it  is 
conceded  that  the  statute  has  not  created  such  an  offence  against  an 
alderman.  Our  criminal  code  has  made  it  an  offence  to  propose,  or 
agree  to  receive,  a  bribe,  on  the  part  of  certain  officers  ;  but  an  alder- 
man is  not,  either  in  terms  or  by  construction,  included  amongst  them. 
Rev,  Stat.  1845,  p.  167,  s.  87. 

It  is  contended  that  the  act  charged  does  not  fall  within  an}^  of  the 
common  law  definitions  of  bribery ;  that  no  precedent  can  be  found 
for  such  an  offence,  and  that,  as  propositions  to  receive  bribes  have 
probably  often  been  made,  and  as  no  case  can  be  found  in  which  they 
were  regarded  as  criminal,  the  conclusion  must  follow  ^hat  the  offence 
charged  is  no  offence. 

The  weakness  of  the  conclusion  is  in  the  assumption  of  a  premise 
which  may  or  may  not  be  true.  This  particular  phase  of  depravity 
may  never  before  have  been  exhibited ;  and  if  it  had  been,  a  change 
might  be  so  suddenly  made,  by  an  acceptance  of  the  offer  and  a  con- 
currence of  the  parties,  as  to  constitute  the  offence  of  bribery,  which 
consists  in  the  receiving  any  undue  reward  to  incline  the  party  to  act 
contrary  to  the  known  rules  of  honesty  and  integrity. 

But  the  character  of  a  particular  offence  cannot  fairly  be  determined 
from  the  fact  that  an  offence  exactly  analogous  has  not  been  described 
in  the  books.  We  must  test  the  criminality  of  the  act  by  known  prin- 
ciples of  law. 

At  common  law,  bribery  is  a  grave  and  serious  offence  against  public 
justice  ;  and  the  attempt  or  offer  to  bribe  is  likewise  criminal. 

A  promise  of  money  to  a  corporator,  to  vote  for  a  mayor  of  a  cor- 
poration, was  punishable  at  common  law.  Rex  v.  Plympton,  2  Lord 
Raym.  1377. 

The  attempt  to  bribe  a  privy  councillor,  to  procure  an  office,  was  an 
offence  at  common  law.  Rex  v.  Vaughan,  4  Burr.  2494.  In  that  case, 
Lord  Mansfield  said:  "Wherever  it  is  a  crime  to  take,  it  is  a  crime 
to  give.  They  are  reciprocal.  And  in  many  cases,  especially  in  bribery 
at  elections  to  parliament,  the  attempt  is  a  crime.  It  is  complete  on 
his  side  who  offers  it." 

Why  is  the  mere  unsuccessful  attempt  to  bribe  criminal  ?  The  offi- 
cer refuses  to  take  the  offered  reward,  and  his  integrity  is  untouched, 


SECT.  II. J  WALSH   V.   PEOPLE.  120 

his  conduct  uninfluenced  by  it.  The  reason  for  the  law  is  phiin.  The 
offer  is  a  sore  temptation  to  the  weak  or  the  depraved.  It  tends  to 
corrupt;  and  as  the  law  al)hors  the  least  tendency  to  corru[)lion,  it 
piinislic'S  the  act  whicli  is  calculated  to  debase,  and  which  may  affect 
prejudicially  the  morals  of  tlie  community. 

The  attempt  to  bribe  is,  then,  at  coimuon  law  a  misdemeanor ;  and 
the  person  making  the  offer  is  liable  to  indictment  and  punisluneut. 

Wliat  are  misdemeanors  at  common  law?  Wiiarton,  in  Ijis  work  on 
criminal  law,  p.  74,  says:  "  jNlisdemeanors  compiisc  all  offences,  lower 
than  felonies,  which  may  be  the  subject  of  indictment.  They  are  divided 
into  two  classes :  first,  such  as  are  mala  in  se,  or  penal  at  common 
law ;  and  secondl}',  such  as  are  mala  prohibita,  or  penal  by  statute. 
Whatever,  under  tlie  first  class,  mischievously  affects  the  person  or 
property  of  another,  or  openly  outrages  decency,  or  disturbs  public 
order,  or  is  injurious  to  public  morals,  or  is  a  breach  of  otlicial  duty, 
when  done  corruptly,  is  the  subject  of  indictment." 

In  the  case  of  The  King  v.  Higgins,  2  East,  5,  the  defendant  was 
indicted  for  soliciting  and  inciting  a  servant  to  steal  his  master's  chat- 
tels. There  was  no  proof  of  any  overt  act  towards  carrying  the  intent 
into  execution,  and  it  was  argued,  in  behalf  of  the  prisoner,  that  the 
solicitation  was  a  mere  fruitless,  ineffectual  temptation,  —  a  mere  wish 
or  desire. 

It  was  held,  by  all  the  judges,  that  the  soliciting  was  a  misdemeanor, 
though  tlie  indictment  contained  no  charge  that  the  servant  stole  the 
goods,  nor  that  any  other  act  was  done  except  the  soliciting. 

Separate  opinions  were  delivered  by  all  the  judges. 

Lord  Kenyox  said  the  solicitation  was  an  act,  and  it  would  be  a  slan- 
der upon  the  law  to  suppose  that  such  an  offence  was  not  indictable. 

Gross,  J.,  said  an  atteinpt  to  commit  a  misdemeanor  was,  in  itself, 
a  misdemeanor.    The  gist  of  the  offence  is  the  incitement. 

Lawkenck,  J.,  said:  "All  offences  of  a  public  nature,  that  is,  all 
such  acts  or  attempts  as  tend  to  the  prejudice  of  tlie  community,  are 
indictable  ;  "  and  that  the  mere  soliciting  tlie  servant  to  steal  was  an 
attempt  or  endeavor  to  commit  a  crime. 

Le  Blanc,  J.,  said  that  the  inciting  of  another,  by  whatever  means 
it  is  attempted,  is  an  act  done  ;  and  if  tlie  act  is  done  with  a  criminal 
intent,  it  is  punishable  by  indictment. 

An  attempt  to  conuuit  an  offence  or  to  solicit  its  commission  is  at 
common  law  punishable  by  indictment.  1  Hawk.  P.  C.  55  ;  Whar.  Cr. 
Law,  78  and  872  ;  1  Russ.  on  Cr.  49. 

While  we  are  not  disposed  to  concur  Avith  Wharton,  to  the  full  extent, 
in  the  language  quoted,  that  every  act  which  might  be  supposed,  accord- 
ing to  the  stern  ethics  of  some  persons,  to  be  injurious  to  the  public 
morals,  to  be  a  misdemeanor,  yet  we  are  of  opinion  that  it  is  a  mis- 
demeanor to  propose  to  receive  a  bribe.  It  must  be  regarded  as  au 
inciting  to  offer  one,  and  a  solicitation  to  commit  an  offence.  This,  at 
connnon  law,  is  a  misdemeanor.     Inciting  another  to  the  commission 

9 


130  UNITED   STATES   V.    STEPHENS.  [CHAP.  V. 

of  any  indictable  offence,  thougli  without  success,  is  a  misdemeanor. 
3  Chitty  Cr.  Law,  994  ;  1  Russ.  on  Cr.  49,  Cartwright's  case ;  Russ. 
and  R.  C.  C.  107,  note  b ;  Rex  v.  Higgins,  2  East,  supra. 

As  we  have  seen,  the  mere  oflfer  to  bribe,  though  it  may  be  rejected, 
is  an  offence  ;  and  the  party  who  makes  the  offer  is  amenable  to  indict- 
ment and  punishment.  The  offer  amounts  to  no  more  than  a  proposal 
to  give  a  bribe ;  it  is  but  a  solicitation  to  a  person  to  take  one.  The 
distinction  between  an  offer  to  bribe  and  a  proposal  to  receive  one,  is 
exceedingly  nice.  The  difference  is  wholly  ideal.  If  one  man  attempt 
to  bribe  an  officer,  and  influence  him,  to  his  own  degradation  and  to 
the  detriment  of  the  public,  and  fail  in  his  purpose,  is  he  more  guilty 
than  the  officer,  who  is  willing  to  make  sale  of  his  integrit}',  debase 
himself,  and  who  solicits  to  be  purchased,  to  induce  a  discharge  of  his 
duties  ?  The  prejudicial  effects  upon  society  are,  at  least,  as  great  in 
the  one  case  as  in  the  other  ;  the  tendency  to  corruption  is  as  potent ; 
and  when  the  officer  makes  the  proposal,  he  is  not  only  degraded,  but 
the  public  service  suffers  thereby. 

According  to  the  well-established  principles  of  the  common  law,  the 
proposal  to  receive  the  bribe  was  an  act  which  tended  to  the  preju- 
dice of  the  community,  greatly  outraged  public  decency,  was  in  the 
highest  degree  injurious  to  the  public  morals,  was  a  gross  breach  of 
official  duty,  and  must  therefore  be  regarded  as  a  misdemeanor,  for 
which  the  party  is  liable  to  indictment. 

It  is  an  offence  more  serious  and  corrupting  in  its  tendencies  than 
an  ineffectual  attempt  to  bribe.  In  the  one  case  the  officer  spurns  the 
temptation,  and  maintains  his  purity  and  integrity  ;  in  the  other,  he 
manifests  a  depravity  and  dishonesty  existing  in  himself,  which,  when 
developed  by  the  proposal  to  take  a  bribe,  if  done  with  a  corrupt  intent, 
should  be  punished  ;  and  it  would  be  a  slander  upon  the  law  to  suppose 
that  such  conduct  cannot  be  checked  by  appropriate  punishment. 

In  holding  that  the  act  charged  is  indictable,  we  are  not  drifting 
into  judicial  legislation,  but  are  merely  applying  old  and  well-settled 
principles  to  a  new  state  of  facts. 


UNITED  STATES  v.  STEPHENS, 

Circuit  Court  of  United  States,  District  of  Oregon.     1882. 

[Reported  8  Sawyer,  116.] 

Deady,  J.^  On  March  30,  1882,  an  information  was  filed  by  the 
district  attorney,  accusing  the  defendant,  b}^  the  first  count,  of  the 
crime  of  introducing  spirituous  liquors  into  the  district  of  Alaska,  con- 
trary to  law  ;  and,  by  the  second  count,  of  the  crime  of  "  attempting  " 

1  Part  of  the  opinion  only  is  printed.  —  Ed. 


SECT.  II.]  UNITED   STATES   V.   STEPHENS.  131 

to  SO  introduce  such  luiuors  into  said  district.^  The  defendant  de- 
murs to  tlic  iufortnatiou  because  it  does  not  state  facts  sutlicient  to 
constitute  a  crime. 

Upon  the  argument  of  tlic  demurrer  it  was  abandoned  as  to  the  first 
count,  and  insisted  upon  as  to  the  second.  This  count  alleges  that  on 
July  14,  1879,  the  defendant,  being  in  the  district  of  Alaska,  wrote  and 
transmitted  a  letter  to  a  certain  firm  in  San  Francisco,  California, 
wht-rein  and  wherel)y  he  requested  said  firm  to  ship  and  send  to  him  at 
Fort  Wrangel,  in  said  district,  one  lumdred  gallons  of  whiskey  ;  the 
defendant  then  well  knowing  that  said  firm  were  then  wholesale  dealers 
in  spirituous  liquors,  and  owned  and  possessed  said  one  hundred  gallons 
of  whiskey  ;  "  and  he  thereby  contriving  and  intending  to  introduce  the 
said  one  hundred  gallons  of  whiskey  into  the  said  district  of  Alaska." 

There  are  a  class  of  acts  which  may  be  fairly  said  to  be  done  in  pur- 
suance of  or  in  combination  with  an  intent  to  commit  a  crime,  but  are 
not,  in  a  legal  sense,  a  part  of  it,  and  therefore  do  not  with  such  intent 
constitute  an  indictable  attempt ;  for  instance,  the  purchase  of  a  gun 
with  a  design  to  commit  murder,  or  the  purchase  of  poison  with  the 
same  intent.  These  are  considered  in  tiie  nature  of  preliminary  prepara- 
tions, —  conditions,  not  causes,  —  and  although  coexistent  with  a  guilty 
intent,  are  indifferent  in  their  character,  and  do  not  advance  the  con- 
duct of  the  party  beyond  the  sphere  of  mere  intent.  They  are,  it  is 
true,  the  necessary  conditions  without  which  the  shooting  or  poisoning 
could  not  take  place,  but  they  are  not,  in  the  eye  of  the  law,  the  cause 
of  either.  1  Whart.  C.  L.,  sees.  178,  181  ;  1  Bisli.  C  L.,  sec.  668  et 
seq.;  The  People  v.  Murra}-,  14  Cal.  160. 

Dr.  Wharton  says  (supra,  sec.  181)  :  "To  make  the  act  an  indict- 
able attempt,  it  must  be  a  cause  as  distinguished  from  a  condition  ; 
and  it  must  go  so  far  that  it  would  result  in  the  crime  unless  frustrated 
by  extraneous  circumstances."  Bishop  says  (supra^  sec.  669) :  "It  is 
plain  that  if  a  man  who  has  a  wicked  purpose  in  his  heart  does  some- 
thing entirel}'  foreign  in  its  nature  from  that  purpose,  he  does  not  com- 
mit a  criminal  attempt  to  do  the  thing  proposed.  On  the  other  hand, 
if  he  does  what  is  exactly  adapted  to  accomplish  the  evil  meant,  yet 
proceeds  not  far  enough  in  the  doing  for  the  cognizance  of  the  law,  he 
still  escapes  punishment.  Again,  if  he  does  a  thing  not  completely,  as 
the  result  discloses,  adapted  to  accomplish  the  wrong,  he  may  under 
some  circumstances  be  punishable,  while  under  other  circumstances  he 
may  escape.  And  the  difficulty  is  not  a  small  one,  to  lay  down  rules 
readily  applied,  which  shall  guide  the  practitioner  in  respect  to  the  cir- 
cumstances in  which  the  criminal  attempt  is  sufficient." 

In  The  People  v.  Murray,  supra,  the  defendant  was  indicted  for  an 
attempt  to  contract  an  incestuous  marriage,  and  was  found  guilty. 
From  the  evidence  it  appeared  that  he  intended  to  contract  such  mar- 
riage, that  he  eloped  with  his  niece  for  that  purpose,  and  requested  a 


1  This  was  made  criminal  by  Act  of  March  3,  1873  (17  Stat,  at  L.  530). 


—  Ed. 


132  UNITED   STATES   V.   STEPHENS.  [CHAP.  V. 

third  person  to  get  a  magistrate  to  perform  the  ceremou}-.  Upon  an 
appeal  tlie  judgment  was  reversed.  Chief  Justice  Field,  delivering  the 
opinion  of  the  court,  said:  "  It  (the  evidence)  sliows  xevy  clearly  the 
intention  of  the  defendant ;  but  something  more  than  mere  intention  is 
necessary  to  constitute  the  otfence  charged.  Between  preparation  for 
the  attempt  and  the  attempt  itself,  there  is  a  wide  ditference.  The 
preparation  consists  in  devising  or  arranging  the  means  or  measures 
necessary  for  the  commission  of  the  otfence  ;  tlie  attempt  is  the  direct 
movement  towards  the  commission  after  the  preparations  are  made 
.  .  .  ;  but  until  the  officer  was  engaged,  and  the  parties  stood  before 
him,  ready  to  take  the  vows  appropriate  to  the  contract  of  marriage,  it 
cannot  be  said,  in  strictness,  that  the  attempt  was  made.  The  attempt 
contemplated  by  the  statute  must  be  manifested  by  acts  which  would 
end  in  the  consummation  of  the  particular  offence,  but  for  the  interven- 
tion of  circumstances  independent  of  the  will  of  the  party." 

In  tlie  case  under  consideration,  to  constitute  the  attempt  cliarged  in 
tlie  information  there  must  have  been  an  intent  to  commit  the  crime  of 
introducing  spirituous  liquors  into  Alaska,  combined  with  an  act  done 
in  pursuance  of  such  intention  that  apparentl}^,  in  the  usual  course  of 
events,  would  have  resulted  in  such  introduction,  unless  interrupted  by 
extraneous  circumstances,  but  which  actuall}-  fell  short  of  such  result. 

But  it  does  not  appear  that  anything  was  done  by  the  defendant 
towards  the  commission  of  the  intended  crime  of  introducing  spirituous 
liquors  into  Alaska,  but  to  offer  or  attempt  to  purchase  the  same  in 
San  Francisco.  The  written  order  sent  there  by  the  defendant  was,  in 
effect,  nothing  more  or  less  than  an  offer  by  him  to  purchase  the  one 
hundred  gallons  of  whiskey  ;  and  it  will  simplify  the  case,  to  regard 
him  as  being  present  at  the  house  of  the  San  Francisco  firm,  at  the 
time  his  order  reached  them,  seeking  to  purchase  the  liquor  with  the 
intent  of  committing  the  crime  of  introducing  the  same  into  Alaska. 

But  the  case  made  by  the  information  stops  here.  It  does  not  show 
that  he  bought  any  liquor.  Whether  he  changed  his  mind,  and  coun- 
termanded the  order  before  the  delivery  of  the  goods,  or  whether  the 
firm  refused  to  deal  with  him,  does  not  appear. 

Now,  an  offer  to  purchase  whiskey,  with  the  intent  to  ship  it  to 
Alaska,  is,  in  any  view  of  the  matter,  a  mere  act  of  preparation,  of 
which  the  law  takes  no  cognizance.  As  the  matter  then  stood,  it  was 
impossible  for  the  defendant  to  attempt  to  introduce  this  liquor  into 
Alaska,  because  he  did  not  own  or  control  it.  It  was  simply  an  attempt 
to  purchase,  —  an  act  harmless  and  indifferent  in  itself,  whatever  the 
jiurpose  with  which  it  was  done. 

But  suppose  the  defendant  had  gone  further,  and  actually  succeeded 
in  purchasing  tlie  liquor,  wherein  would  the  case  differ  from  that  of  the 
person  who  bought  the  gun  or  poison  with  intent  to  commit  murder, 
but  did  no  subsequent  act  in  execution  of  such  purpose?  In  all  essen- 
tials the}'  are  the  same. 

A  purchase  of  spirituous  liquor  at  San  Francisco  or  Portland,  either 


SECT.  II.]  GLOVER  V.   COMMONWEALTH.  133 

in  person  or  by  written  order  or  application,  with  intent  to  commit  a 
crime  with  the  same, —  as  to  dispose  of  It  at  retail  williont  a  license,  or 
to  a  minor,  or  to  Introduce  it  into  Alaska,  —  is  merely  a  preparatory 
act,  indltrerent  in  its  character,  of  which  the  law,  lacking  the  omni- 
science of  Deity,  cannot  take  cognizance. 

At  what  period  of  the  transaction  the  shipper  of  liquor  to  Alaska  is 
guilty  of  an  attempt  to  introduce  the  same  there,  is  not  very  easily 
determined.  Certainly  the  liquor  must  first  be  purchased  —  obtained 
in  some  way  —  and  started  for  its  illegal  destination.  Rut  it  is  doubt- 
ful whether  the  attempt,  or  the  act  necessary  to  constitute  it,  can  be 
committed  until  the  liquor  is  taken  so  near  to  some  point  or  pjace  of 
"  the  mainland,  islands,  or  waters"  of  Alaska  as  to  render  it  conven- 
ient to  introduce  it  from  there,  or  to  make  it  manifest  that  such  was  the 
present  purpose  of  the  parties  concerned.  But  this  is  a  mere  sug- 
gestion ;  and  each  case  must  be  determined  upon  its  own  circumstances. 

The  demurrer  is  sustained  to  the  second  count,  and  overruled  as  to 
the  first 


GLOVER  V,  COMMONWEALTH. 
Supreme  Court  of  Appeals  of  Virginia.     1889. 

[Reported  86  Vir<jinia,  382.] 

Lewis,  P.,  delivered  the  opinion  of  the  court. 

Among  the  exceptions  taken  by  the  prisoner  at  the  trial  was  one  to 
the  refusal  of  the  court  to  instruct  the  jury  as  follows:  "If  the  jury 
believe  from  the  evidence  that  the  prisoner  at  the  bar  intended  to  com- 
mit a  rape  on  the  prosecutrix,  Berta  Wright,  but  before  the  act  was 
finally  executed,  he  voluntarily  and  freely  abandoned  it,  they  are  to 
find  a  verdict  of  not  guilty."  ^ 

This  exception  is  not  well  taken.  To  have  given  the  instruction 
would  have  been  equivalent  to  telling  the  jury  that  upon  an  indictment 
for  rape,  the  accused  cannot  l)e  legally  convicted  of  an  attempt  to  com- 
mit a  rape,  which  is  not  the  law.  The  court,  therefore,  did  not  err  in 
refusing  to  give  it,  nor  did  it  err  in  subsequently  instructing  the  jury, 
as  in  etTect  it  did,  that  upon  an  indictment  for  rape,  the  accused  may 
be  found  guilty  of  an  attempt  to  commit  a  rape,  which  is  in  accordance 
with  the  law  in  this  State.  Givcns  v.  Commonwealth,  29  Gratt.  830 ; 
Mings  c.  Same,  85  Va.  638.  Indeed,  the  statute,  now  brought  into 
section  40-44  of  the  Code,  expressly  enacts  that  "on  an  indictment  for 
felony,  the  jury  may  find  the  accused  not  guilty  of  the  felony,  but  guilty 
of  an  attempt  to  commit  such  felony  ;  and  a  general  verdict  of  not 
guilty  upon  such  indictment  shall  be  a  bar  to  a  subsequent  prosecution 
for  an  attempt  to  commit  such  felony." 

1  Only  so  much  of  the  opinion  as  refers  to  this  exception  is  printed. 


134  COMMONWEALTH   V.    KANDOLPH.  [CHAP.  V. 

An  attempt  in  criminal  law  is  an  apparent  uuGuished  crime,  and 
hence  is  compounded  of  two  elements,  viz. :  (1)  The  intent  to  commit  a 
crime  ;  and  [2)  a  direct  act  done  towards  its  commission,  but  falling 
short  of  the  execution  of  the  ultimate  design.  It  need  not,  therefore, 
be  the  last  proximate  act  to  the  consummation  of  the  crime  in  contem- 
plation, but  is  sufticient  if  it  be  an  act  apparently  adapted  to  produce 
the  result  intended.  It  must  be  something  more  than  mere  prepara- 
tion.    Uhl's  Case,  G  Gratt.  706  ;  Hicks'  Case,  86  Va.  223. 

Hence,  when  the  prisoner  took  the  prosecutrix  into  the  stable,  and 
there  did  the  acts  above  mentioned,  the  attempt  to  commit  a  rape  was 
complete  ;  for  there  was  the  unlawful  intent  accompanied  by  acts  done 
towards  the  commission  of  the  intended  crime,  but  falling  short  of  its 
commission.  Indeed,  it  is  not  denied  that  there  was  such  attempt,  but 
it  is  contended  —  and  such  was  the  main  defence  at  the  trial  —  that  the 
subsequent  voluntary  abandonment  of  the  criminal  purpose  cleansed 
the  prisoner  of  all  crime,  so  far  as  the  attempt  was  concerned.  But 
this  is  a  mistaken  view.  For,  on  the  contrary,  it  is  a  rule,  founded  in 
reason  and  supported  by  authority,  that  if  a  man  resolves  on  a  criminal 
enterprise,  and  proceeds  so  far  in  it  that  his  act  amounts  to  an  indict- 
able attempt,  it  does  not  cease  to  be  such,  though  he  voluntarily  aban- 
dons the  evil  purpose. 

In  Lewis  v.  The  State,  35  Ala.  380,  which  was  an  indictment  for  an 
attempt  to  commit  a  rape,  it  was  ruled  by  the  Supreme  Court  of  Alabama 
that  if  the  attempt  was  in  fact  made,  and  had  progressed  far  enough  to 
put  the  prosecutrix  in  terror  and  render  it  necessary  for  her  to  save 
herself  from  the  consummation  of  the  attempted  outrage  by  flight,  then 
the  attempt  was  complete,  though  the  prisoner  had  not  in  fact  touched 
her ;  and  that  an  after-abandonment  by  the  prisoner  of  his  wicked  pur- 
pose could  not  purge  tlie  crime.  And  there  are  many  other  authorities 
to  the  same  effect.  See  1  Bish.  Crim.  Law  (6th  ed.),  sec.  732,  and 
cases  cited. 


COMMONWEALTH  v.  RANDOLPH. 
Supreme  Court  of  Pennsylvania.     1892. 

[Reported  146  Pennsylvania,  83.] 

Per  Curiam.  The  appellant  was  convicted  in  the  court  below  upon 
an  indictment  in  the  first  count  of  which  it  was  charged  that  she, 
"  Sarah  A.  McGinty,  alias  Sarah  A.  Randolph,  .  .  .  unlawfully,  wick- 
edly, and  maliciously  did  solicit  and  Invite  one  Samuel  Kissinger, 
then  and  there  being,  and  by  the  offer  and  promise  of  payment  to  said 
Samuel  Kissinger  of  a  large  sura  of  money,  to  wit,  one  thousand  dol- 
lars, which  to  him.  the  said  Samuel  Kissinger,  she,  the  said  Sarah  A. 
McGinty,  alias  Sarah  A.  Randolph,  then  and  there  did  propose,  offer, 


SECT.  II.]  COMMONWEALTH   V.   RANDOLPH.  135 

promise,  and  agree  to  iJa\-,  did  incite  and  encourage  liini,  the  said 
Samuel  Kissinger,  one  William  8.  Foltz,  a  citizen  of  said  county,  in 
the  peace  of  said  commonwealth,  feloniously  to  kill,  murder,  and  slay, 
contrary  to  the  form  of  the  act  of  general  a.s.sembly  in  .such  ca.se  made 
ami  [)rovided,  and  against  the  peace  and  dignity  of  the  commonwealth 
of  Pennsylvania."  Upon  the  trial  below  the  defendant  moved  to  quash 
the  indictment  upon  the  ground  that  "  the  said  indictment  does  not 
charge  in  any  count  thereof  any  offence,  either  at  common  law  or  by 
statute."  The  court  below  refused  to  quash  the  indictment ;  and  this 
ruling,  with  the  refusal  of  the  court  to  arrest  the  judgment,  is  assigned 
as  error. 

It  may  be  conceded  that  there  is  no  statute  which  meets  this  case, 
and,  if  the  crime  charged  is  not  an  ottence  at  common  law,  the  judgment 
must  be  reversed.  What  is  a  common-law  offence?  AVe  endeavored 
to  answer  this  question  in  Com.  v.  McHale,  1)7  Pa.  397,  410,  in  which 
we  held  tliat  offences  against  the  purity  and  fairness  of  elections  were 
crimes  at  common  law,  and  indictable  as  such.  We  there  said  :  "  We 
are  of  opinion  that  all  such  crimes  as  especially  affect  public  society 
are  indictable  at  common  law.  The  test  is  not  whether  precedents  can 
be  found  in  the  books,  but  whether  they  injunousl3'  affect  the  public 
policy  and  economy."  Tested  by  this  rule,  we  have  no  doubt  that 
the  solicitation  to  commit  murder,  accompanied  by  the  offer  of  money 
for  that  purpose,  is  an  offence  at  common  law. 

It  may  be  conceded  that  the  mere  intent  to  commit  a  crime,  where 
such  intent  is  undisclosed,  and  nothing  done  in  pursuance  of  it,  is  not 
the  subject  of  an  indictment.  But  there  was  something  more  than  an 
undisclosed  intent  in  this  case.  There  was  the  direct  solicitation  to 
commit  a  murder,  and  an  offer  of  money  as  a  reward  for  its  connnission. 
This  was  an  act  done,  —  a  step  in  the  direction  of  the  crime,  —  and 
bad  the  act  been  perpetrated  the  defendant  would  have  been  liable  to 
punishment  as  an  accessory  to  the  murder.  It  needs  no  argument  to 
show  that  such  an  act  affects  the  public  policy  and  economy  in  a  serious 
manner. 

Authorities  in  this  State  are  very  meagre.  Smith  v.  Com.,  o-i  Pa. 
209,  decided  that  solicitation  to  commit  fornication  and  adultery  is  not 
indictable.  But  fornication  and  adultery  are  mere  misdemeanors  by 
our  law,  whereas  murder  is  a  capital  felony.  Stabler  c.  Com.,  05  Pa. 
318,  decided  that  the  mere  delivery  of  poison  to  a  person,  and  solicit- 
ing him  to  place  it  in  the  spring  of  a  certain  party,  is  not  "  an  attempt 
to  administer  poison,"  within  the  meaning  of  the  eighty-second  section 
of  the  Act  of  March  31,  ISfiO,  P.  L.  403.  In  that  case,  however,  the 
sixth  count  of  the  indictment  charged  that  the  defendant  did  "falsely 
and  wickedly  solicit  and  invite  one  John  Neyer,  a  servant  of  the  said 
Richard  S.  Waring,  to  administer  a  certain  poison  and  noxious  and 
dangerous  sub-stance,  commonly  called  Paris  green,  to  the  said  Richard 
F.  Waring,  and  divers  other  persons,  whose  names  are  to  the  said 
inquest  unknown,  of  the  family  of  the  said  Richard  F.  Waring,"  etc. 


136  COMMO^'^VEALTH    V.    RANDOLPH.  [CHAP.  V. 

The  defendant  was  convicted  upon  this  count,  and  while  the  judgment 
was  reversed  upon  the  first  count  charging  "  an  attempt  to  administer 
poison,"  we  sustained  the  conviction  upon  the  sixth  count ;  Mercur,  J., 
saying:  ''The  conduct  of  the  plaintitf  in  error,  as  testified  to  by  the 
witness,  undoubtedly  shows  an  offence  for  which  an  indictment  will  lie 
without  any  further  act  having  been  committed.  He  was  rightly  con- 
victed, therefore,  on  the  sixth  count." 

The  authorities  in  England  are  very  full  upon  this  point.  The  lead- 
ing case  is  Rex  v.  Higgius,  2  East,  5.  It  is  very  similar  to  the  case 
at  bar,  and  it  was  squarely  held  that  solicitation  to  commit  a  felony  is 
a  misdemeanor  and  indictable  at  common  law.  In  that  case  it  was  said 
by  Lord  Kenyok,  C.  J. :  "  But  it  is  argued  that  a  mere  intent  to  com- 
mit evil  is  not  indictable  without  an  act  done  ;  but  is  there  not  an  act 
done,  where  it  is  charged  that  the  defendant  solicited  another  to  commit 
a  felony?  The  solicitation  is  an  act,  and  the  answer  given  at  the  bar 
is  decisive  that  it  would  be  sufficient  to  constitute  an  overt  act  of  high 
treason."  We  are  not  unmindful  of  the  criticism  of  this  case  by  Chief 
Justice  Woodward  in  Smith  v.  Com.,  siipra,  but  we  do  not  think  it 
affects  the  authority  of  that  case.  The  point  involved  in  Rex  v.  Hig- 
gins  was  not  before  the  court  in  Smith  v.  Com.,  and  could  not  have 
been  and  was  not  decided.  It  is  true,  this  is  made  a  statutory  offence 
by  St.  24  &  25  Vict. ;  but,  as  is  said  by  Mr.  Russell  in  his  work  on 
Crimes  (volume  1,  p.  967),  in  commenting  on  this  act:  "As  all  the 
crimes  specified  in  this  clause  appear  to  be  misdemeanors  at  common 
law,  the  effect  of  this  clause  is  merely  to  alter  the  punishment  of  them." 
In  other  words,  that  statute  is  merely  declaratory  of  the  common  law. 

Our  best  text-books  sustain  the  doctrine  of  Rex  v.  Higgins.  "  If 
the  crime  solicited  to  be  committed  be  not  perpetrated,  then  the  adviser 
can  only  be  indicted  for  a  misdemeanor."  1  Chit.  Crim.  Law,  p. 
264.  See,  also,  1  Archb.  Crim.  Pr.  &  PI.  19,  and  1  Bish.  Crim.  Law, 
§  768,  where  the  learned  author  says:  "The  law  as  adjudged  holds, 
and  has  held  from  the  beginning  in  all  this  class  of  cases,  an  indict- 
ment sufficient  which  simply  charges  that  the  defendant,  at  the  time 
and  place  mentioned,  falsely,  wickedly,  and  unlawfully  did  solicit  and 
incite  a  person  named  to  commit  the  substantive  offence,  without  any 
further  specification  of  overt  acts.  It  is  vain,  then,  to  say  that  mere 
solicitation,  the  mere  entire  thing  which  need  be  averred  against  a 
defendant  as  the  ground  for  his  conviction,  is  no  offence."  We  are  of 
opinion  the  appellant  was  properly  convicted,  and  the  judgment  is 
aflflrmed.^ 

1  See  State  v.  Avery,  7  Conn.  266  ;  Com.  v.  Flagg,  135  Mass.  545.  Cf.  Cox  r. 
People,  82  111.  191;  Smith  v.  Com.,  54  Pa.  209.  —Ed. 


SECT.  II.]  KEGINA   V.   COLLINS.  137 


REGINA  V.  COLLINS. 
Crown  Case  Reseuveu.     1864. 

[Reported  9  Cox  C.  C.  497.] 

Case  reserved  for  the  opinion  of  this  court  by  the  Deput3'-As9istant 
Jiuljre  at  the  MitUllesex  Sessions. 

The  i)risoners  were  tried  before  me  at  the  Middlesex  Sessions  on  an 
indictment  which  stated  that  they  unlawfully  did  attempt  to  commit  a 
certain  felony  ;  that  is  to  say,  that  they  did  then  put  and  place  one  of 
the  hands  of  each  of  them  into  the  gown  pocket  of  a  certain  woman, 
whose  name  is  to  the  jurors  unknown,  with  intent  the  property  of  the 
said  woman,  in  the  said  gown  pocket  then  being,  from  the  person  of 
the  said  woman  to  steal,  &c. 

The  evidence  showed  clearly  that  one  of  the  prisoners  put  his  hand 
into  the  gown  pocket  of  a  lady,  and  that  the  others  were  all  concerned 
in  the  transaction. 

The  witness  who  proved  the  case  said  on  cross-examination  tliat  he 
asked  the  lady  if  she  had  lost  anything,  and  she  said  "  No." 

For  the  defence  it  was  contended  that  to  put  a  hand  into  an  empt}' 
pocket  was  not  an  attempt  to  commit  felony,  and  that  as  it  was  not 
proved  affirmatively  that  there  was  any  property'  in  the  pocket  at  the 
time,  it  must  be  taken  that  there  was  not,  and  as  larceny  was  the  steal- 
ing of  some  chattel,  if  there  was  not  any  chattel  to  be  stolen,  putting 
the  hand  in  the  pocket  could  not  be  considered  as  a  step  towards  the 
completion  of  the  otTence. 

I  declined  to  stop  the  case  upon  this  objection  ;  but  as  such  cases 
are  of  frequent  occurrence,  I  thought  it  right  that  the  point  should  be 
determined  by  the  authority  of  the  Court  of  Criminal  Ai)peal. 

The  jury  found  all  the  prisoners  guilty,  and  the  question  upon  which 
the  opinion  of  your  Lordships  is  respectfull}-  requested  is,  whether 
under  the  circumstances  the  verdict  is  sustainable  in  point  of  law? 

The  prisoners  are  in  custody  awaiting  sentence. 

Joseph  Payne,  Deputy-Assistant  Judge. 

Pohrad,  for  the  prisoners.  The  conviction  is  bad.  It  is  not  an 
indictable  offence  to  put  a  hand  into  an  empt}'  pocket  with  intent  to 
steal,  but  an  offence  punishable  only  under  the  Vagrant  Act.  It  is  not 
alleged  in  the  indictment  that  there  was  any  property  in  the  pocket. 
Tliis  is  very  like  the  case  of  Keg.  u.  M'Pherson  (1  Dears.  &  B.  197; 
7  Cox  Crim.  Cas.  281),  where  it  was  held  that  a  man  who  was  charged 
with  breaking  and  entering  a  dwelling-house  and  stealing  certain  spe- 
cified goods,  could  not  be  convicted  unless  the  specified  goods  were 
in  the  house,  notwithstanding  other  goods  were  there.  [Cockburn, 
C.  J.  That  case  proceeds  on  the  ground  that  you  nnist  prove  the 
property  as  laid.]  In  the  course  of  the  argument  Bkamwkli.,  B.,  put 
this  very  case,  and  said :  "The  argument  that  a  man  putting  his  hand 


138  EEGINA  V.   COLLINS.  [CHAP.  V. 

into  an  erapt}'  pocket  might  be  convicted  of  attempting  to  steal, 
appeared  to  me  at  first  plausible  ;  but  supposing  a  man,  believing  a 
block  of  wood  to  be  a  man  who  was  his  deadl}-  eneui}-,  struck  it  a  blow 
intending  to  murder,  could  he  be  convicted  of  attempting  to  murder  the 
man  he  took  it  to  be?"  So  in  R.  v.  Scudder  (3  C.  &  P.  605)  it  was 
held  that  there  could  not  be  a  conviction  for  administering  a  drug  to  a 
woman  to  procure  abortion,  if  it  appeared  that  the  woman  was  not 
with  child  at  all.  That  case  was  before  the  Consolidation  Act  (24  & 
25  Vict.  c.  96).  [Bramwell,  B.  You  ma}^  put  this  case :  Suppose  a 
man  takes  awa}'  an  umbrella  from  a  stand  with  intent  to  steal  it,  believ- 
ing it  not  to  be  his  own,  but  it  turns  out  to  be  his  own,  could  he  be 
convicted  of  attempting  to  steal?]     It  is  submitted  that  he  could  not. 

Metcalfe,  for  the  prosecution.  The  fallacy  in  the  argument  on  the 
other  side  consists  in  assuming  that  it  is  necessary  to  prove  anything 
more  than  an  attempt  to  steal.  The  intent  to  steal,  it  is  conceded,  is 
not  sufficient ;  but  any  act  done  to  carry  out  the  intent,  as  putting  a 
hand  into  the  pocket,  will  do.  [Ckompton,  J.  Suppose  a  man  were 
to  go  down  a  lane  armed  with  a  pistol,  with  the  intention  to  rob  a 
particular  person,  whom  he  expected  would  pass  that  way,  and  the  per- 
son does  not  happen  to  come,  would  that  be  an  attempt  to  rob  the 
person  ?] 

CocKBURN,  C.  J.  We  are  all  of  opinion  that  this  conviction  cannot 
be  sustained,  and  in  so  holding  it  is  necessary  to  observe  that  the  judg- 
ment proceeds  on  the  assumption  that  the  question,  whether  there  was 
anything  in  the  pocket  of  the  prosecutrix  which  might  have  been  the 
subject  of  larceny,  does  not  appear  to  have  been  left  to  the  jury.  The 
case  was  reserved  for  the  opinion  of  this  court  on  the  question,  whether, 
supposing  a  person  to  put  his  hand  into  the  pocket  of  another  for  the 
purpose  of  larceny,  there  being  at  the  time  nothing  in  the  pocket,  that 
is  an  attem})t  to  commit  larceny?  We  are  far  from  saying  that  if  the 
question  whether  there  was  anything  in  the  pocket  of  the  prosecutrix 
had  been  left  to  the  jury,  there  was  not  evidence  on  which  they  might 
have  found  that  there  was,  in  which  case  the  conviction  would  have 
been  affirmed.  But,  assuming  that  there  was  nothing  in  the  pocket  of 
the  prosecutrix,  the  charge  of  attempting  to  commit  larceny  cannot  be 
/  sustained.  This  case  is  governed  by  that  of  Reg.  v.  M'Pherson  ;  and 
we  think  that  an  attempt  to  commit  a  felony  can  only  be  made  out 
when,  if  no  interruption  had  taken  place,  the  attempt  could  have  been 
carried  out  successfully,  and  the  felony  completed  of  the  attempt  to 
commit  which  the  party  is  charged.  In  this  case,  if  there  was  nothing 
in  the  pocket  of  the  prosecutrix,  in  our  opinion  the  attempt  to  commit 
larceny  cannot  be  established.  It  may  be  illustrated  by  the  case  of  a 
person  going  into  a  room,  the  door  of  which  he  finds  open,  for  the  pur- 
pose of  stealing  whatever  property  he  may  find  there,  and  finding 
nothing  in  the  room,  in  that  case  no  larceny  could  be  committed,  and 
therefore  no  attempt  to  commit  larceny  could  be  committed.  In  the 
absence,  therefore,  of  any  finding  by  the  jury  in  this  case,  either  di- 


SECT.  II.]  COMMONWEALTH   V.   GREEN.  139 

rectly,  or  infcrentially  by  tlieir  verdict,  that  there  was  any  property  in 
the  pocket  of  the  prosecutrix,  we  thiuk  that  this  conviction  nm.st  l>e 
quashed.^  Conviction  quashed. 


COMMONWEALTH  v.  GREEN. 
Supreme  Judicial  Couut  of  Massachusetts.     1824. 

[Reported  2  Pickering,  380.] 

At  May  term,  1823,  in  the  county  of  Hampden,  the  prisoner,  an 
infant  under  the  age  of  fourteen  years,  was  convicted  of  an  assault  with 
intent  to  commit  a  rape. 

And  now,  upon  a  motion  in  arrest  of  judgment,  E.  H.  Mills  and 
G.  Bliss,  junior,  for  the  prisoner,  contended  that  it  was  clear  from 
all  the  authorities  that  an  infant  under  that  age  is  presumed  by 
law  to  be  unable  to  commit  a  rape  (1  Haile's  P.  C.  630 ;  4  Bl, 
Com.  212;  1  East's  V.  C.  446,  §  8);  and  in  3  Chit.  Cr.  L.  811,  it 
is  said  that  no  evidence  will  be  admitted  to  implicate  him  as  the 
actual  ravisher,  though  he  may  be  guilty  as  an  abettor.  It  would  be 
absurd  then  to  say  that  he  ma}'  be  indicted  for  an  attempt  to  do  what 
the  law  presumes  him  incapable  of  doing.  Suppose  an  assault  b}-  a 
man  upon  another  man  dressed  in  woman's  apparel ;  an  indictment 
charging  him  with  an  assault  with  intent  to  commit  a  rape  could  not  be 
sustained.  So  a  female  could  not  be  indicted  for  an  assault  with  such 
an  intent.  An  indictfnent  for  throwing  oil  of  vitriol  with  intent  to 
burn  a  person's  clothes  might  be  good ;  but  not  so  of  an  indictment  for 
throwing  water  with  such  an  intent.  ,  If  a  woman  were  indicted  for 
petty  treason,  and  it  should  appear  that  she  had  not  been  married,  she 
could  not  be  convicted.  A  man  cannot  be  convicted  of  a  rape  on  his 
own  wife,  nor  of  attempting  to  commit  one,  because  the  matrimonial 
consent  cannot  be  retracted.  In  like  manner  the  prisoner  cannot  be 
convicted  of  a  rape,  nor  of  an  attempt  to  commit  one,  because  the  law 
presumes  him  to  be  incapable.  To  constitute  an  offence  there  must  be 
an  intent  coupled  with  an  act,  and  likewise  a  legal  ability  to  do  tlie 
thing  attempted.  In  regard  to  the  physical  powers  of  the  prisoner  the 
court  cannot  go  into  the  inquiry  whether  here  is  a  particular  exception 

1  Accord  Reg.  v.  Gamble,  10  Co.x  C.  C.  545.  But  see  Reg.  v.  Brown,  24  Q.  B.  D. 
357. 

"  If  a  statute  simply  made  it  a  felony  to  attempt  to  kill  any  human  being,  or  to 
conspire  to  do  so,  an  attempt  by  means  of  witchcral't,  or  a  conspiracy  to  kill  by  means 
of  charms  and  incantations,  would  not  be  an  offence  within  such  a  statute.  The  jiov- 
erty  of  language  compels  one  to  say,  '  an  attempt  to  kill  by  way  of  witchcraft,'  but 
such  an  attempt  is  really  no  attempt  at  all  to  kill.  It  is  true  the  sin  or  wickedness 
may  be  as  great  as  an  attempt  or  conspiracy  by  competent  means;  but  human  laws  are 
made,  not  to  punish  sin,  Imt  to  prevent  crime  and  mischief."  — Pollock,  C.  B.,  in 
Atty-Genl.  v.  Sillem,  2  H.  &  C.  431,  525.  —  Ed. 


140  COMMONWEALTH   V.    GREEN.  [CHAP.  V. 

contrary  to  the  general  rule  of  law.  We  do  not  contend  that  the  pris- 
oner ma}'  not  be  punished  for  the  assault,  but  only  that  he  is  not  indict- 
able for  an  assault  with  the  intent  alleged  in  this  indictment. 

Davis,  Solicitor-General,  for  the  Commonwealth.  The  maxim  that 
an  infant  under  the  age  of  fourteen  years  is  presumed  unable  to  com- 
mit a  rape,  is  indeed  found  in  the  books.  It  originated  in  ancient 
times,  and  it  requires  to  be  subjected  to  the  examination  of  a  modern 
judicial  tribunal.  That  no  evidence  shall  be  admitted  to  impeach  this 
presumption  is  the  dictum  of  one  writer  only,  and  it  cannot  hold  uni- 
versally. In  some  cases  an  infant  under  fourteen  3'ears  is  ph3'sically 
able,  and  there  was  evidence  of  it  in  the  present  case ;  it  would  be 
absurd  then  by  such  presumption  to  shut  out  the  fact  itself.  The 
maxim  is  founded  on  the  principle  that  there  must  be  both  penetration 
and  emission  ;  but  this  idea  is  now  exploded.  1  Hale's  P.  C.  628  ; 
3  Inst.  59,  60  ;  1  East's  P.  C.  436,  §  3  ;  1  Russell  on  Crimes,  805.  In 
Penns3'lvania  v.  Sullivan,  Addis.  143,  it  is  said  that  the  essence  of  the 
crime  is  the  violence  to  the  person  and  feelings  of  the  woman.  An 
injur}'  to  the  feelings  ma}'  be  inflicted  by  a  person  under  fourteen  years 
as  much  as  by  one  over  that  age ;  and  where  there  is  a  guilty  inten- 
tion in  the  perpetrator  of  the  injury,  there  seems  to  be  no  good  rea- 
son for  exonerating  him  from  punishment  on  account  of  his  physical 
incapacity. 

Mills,  in  reply,  said  the  law  was  not  clear  as  to  what  facts  are 
necessary  to  constitute  the  crime  of  rape,  and  in  addition  to  the  author- 
ties  before  cited  to  this  point,  he  referred  to  12  Co.  37 ;  1  Hawk. 
P.  C.  c.  41,  §  3. 

By  THE  Court  (Parker,  C,  J.,  dissenting).  The  court  are  of  opin- 
ion tliat  the  verdict  must  stand  and  judgment  be  rendered  on  it.  The 
law  which  regards  infants  under  fourteen  as  incapable  of  committing 
rape  was  established  in  favorem  vitce,  and  ought  not  to  be  applied  by 
analogy  to  an  inferior  offence,  the  commission  of  which  is  not  punished 
with  death.  A  minor  of  fourteen  years  of  age,  or  just  under,  is  capable 
of  that  kind  of  force  which  constitutes  an  essential  ingredient  in  the 
crime  of  rape,  and  he  may  make  an  assault  with  an  intent  to  commit  that 
crime,  although  by  an  artificial  rule  he  is  not  punishable  for  the  crime 
itself.  An  intention  to  do  an  act  does  not  necessarily  imply  an  ability 
to  do  it ;  as  a  man  who  is  emasculated  may  use  force  with  intent  to 
ravish,  although  possibly,  if  a  certain  effect  should  be  now,  as  it  was 
formerly,  held  essential  to  the  crime,  he  could  not  be  convicted  of  a 
rape.  Females  might  be  in  as  much  danger  from  precocious  boys  as 
from  men,  if  such  boys  are  to  escape  with  impunity  from  felonious 
assaults,  as  well  as  from  the  felony  itself.^  Ifotion  overruled. 

1  C&ntra,  State  v.  Sam,  Winston,  300  (attempt)  ;  Rex  v.  Eldershaw,  3  C.  &  P.  396  ; 
Reg.  V.  Philips,  8  C  &  P.  736  ;  State  v.  Handy,  4  Harr.  566  (assaults  with  intent). 


SECT.  II.]  COMMONWEALTH   V.   MCDONALD.  141 

COMMONWEALTH  ik  McDONALD. 
Supreme  Juuicial  Coukt  of  Massaciiusetts.     1850. 

[Reported  5  Cushiiv/,  365.] 

The  defendant  was  indicted  in  the  niimicii)al  court,  and  there  tried 
before  ISIelleu,  J.,  for  an  attempt  to  commit  a  larceny  from  the 
person. 

At  the  trial,  there  being  no  evidence,  on  the  part  of  the  prosecution, 
that  the  individual  from  whom  the  defendant  was  charged  with  an 
attempt  to  steal,  had  any  property  upon  his  person  at  the  time  of  the 
alleged  attempt,  the  defendant  asked  the  judge  to  rule  that  the  indict- 
ment could  not  be  sustained.^ 

But  the  presiding  judge  ruled  otherwise  ;  and,  the  jury  thereupon 
returning  a  verdict  of  guilty,  the  defendant  excepted. 

T.  Willey,  for  the  defendant. 

Cliif'ord,  Attorney-General,  for  the  Commonwealth. 

Fletcher,  J.  It  was  said,  in  argument  for  the  defendant,  that  he 
could  not  be  said  to  have  attempted  to  steal  the  property  of  the  un- 
known person,  if  there  was  no  propert}-  to  be  stolen  ;  and  that  therefore 
the  indictment  should  have  set  out  the  property  and  shown  the  exist- 
ence and  nature  of  it  by  the  proof.  But  it  will  appear  at  once,  by  a 
simple  reference  to  the  import  of  the  term  "'  attempt,"  that  this  propo- 
sition cannot  be  maintained.  To  attempt  is  to  make  an  effort  to  etfoct 
some  object,  to  make  a  trial  or  experiment,  to  endeavor,  to  use  exer- 
tion for  some  purpose.  A  man  may  make  an  attempt,  an  effort,  a  trial, 
to  steal,  b}'  breaking  open  a  trunk,  and  be  disappointed  in  not  finding 
the  object  of  pursuit,  and  so  not  steal  in  fact.  Still  he  remains  never- 
theless chargeable  with  the  attempt,  and  with  the  act  done  towards  the 
commission  of  the  tlieft.  .So  a  man  may  make  an  attempt,  an  experi- 
ment, to  pick  a  pocket,  b}'  thrusting  his  hand  into  it,  and  not  succeed, 
because  there  happens  to  be  nothing  in  the  pocket.  Still  he  has  clearly- 
made  the  attempt,  and  done  the  act  towards  the  commission  of  the 
offence.  So  in  the  present  case  it  is  not  probable  that  the  defendant 
had  in  view  any  particular  article,  or  had  any  knowledge  whether  or  not 
there  was  anything  in  the  pocket  of  the  unknown  person  ;  but  he 
attempted  to  pick  the  pocket  of  whatever  he  might  find  in  it,  if  hapl}' 
he  should  find  anything  ;  and  the  attempt,  with  the  act  done  of  thrust- 
ing his  hand  into  tiie  pocket,  made  the  offence  complete.  It  was  an 
experiment,  and  an  experiment  which,  in  the  language  of  the  statute, 
failed  ;  and  it  is  as  much  within  the  terms  and  meaning  of  the  statute, 
if  it  failed  by  reason  of  there  being  nothing  in  the  pocket,  as  if  it  had 
failed  from  any  other  cause.  The  following  cases  fully  support  the 
view  taken  in  this  case,  and  I  am  not  aware  of  any  opposing  authori- 

1  Only  so  much  of  the  C£U:e  as  relates  to  this  point  is  printed. 


142  PEOPLE    V.    LEE   KONG.  [CHAP.  V. 

ties :  King  v.  Higgins,  2  East,  5  ;  People  r.  Bush,  4  Hill,  133  ;  Jossl3-n 
V.  Commouwealth,  6  Met.  236  ;  Rogers  v.  Commonwealth,  5  S.  &  R. 
463. 

This  decision  is  confined  to  the  particular  case  under  consideration, 
of  an  attempt  to  steal  from  the  person  ;  as  there  may  perhaps  be  cases 
of  attempts  to  steal  where  it  woukl  be  necessar}-  to  set  out  the  par- 
ticular property  attempted  to  be  stolen,  and  tlie  value.  It  not  being 
necessary,  in  the  present  case,  to  set  out  in  the  indictment  the  projjcrt}' 
attempted  to  be  stolen,  the  defendant's  exception  to  the  ruling  of  the 
judge,  that  there  need  be  no  evidence  of  any  propert}'  in  the  pocket  of 
the  unknown  person,  cannot,  of  course,  be  sustained,  unless  such  evi- 
dence was  made  necessary'  b}'  the  allegations  in  the  indictment. 

The  indictment  alleges  that  the  defendant  attempted  to  steal  from  the 
unknown  person  his  personal  property  then  in  his  pocket  and  in  his 
possession,  neither  the  name  nor  the  value  of  the  propert}'  being  known 
to  the  jurors.  But  this  allegation  is  wholly  unnecessary  and  imma- 
terial, and  ma}'  be  stricken  out ;  and  the  indictment  will  still  remain 
sufficient,  and  contain  all  the  allegations  necessary  to  make  out  the 
offence  against  the  defendant,  and  to  warrant  the  conviction. 

It  not  being  necessar}'  to  allege  that  there  was  anything  in  the 
pocket  of  the  unknown  person,  and  as  all  tliat  part  of  the  indictment 
maj-  be  stricken  out,  the  ruling  of  the  court,  that  there  need  be  no  evi- 
dence of  any  property  in  the  pocket  of  the  person,  was  correct,  and  is 
fully  supported  by  authority-.     Roscoe,  Crim.  Ev.  100. 

Exceptions  overruled.^ 


PEOPLE   V.    LEE   KONG. 
Supreme  Court  of  California.     1892. 

[Reported  95  California,  666.] 

Garoutte,  J.  Appellant  was  convicted  of  the  crime  of  an  as- 
sault with  intent  to  commit  murder,  and  now  prosecutes  this  appeal, 
insisting  that  the  evidence  is  insufficient  to  support  the  verdict. 

The  facts  of  the  case  are  novel  in  the  extreme,  and  when  applied 
to  principles  of  criminal  law,  a  question  arises  for  determination  upon 
which  counsel  have  cited  no  precedent. 

A  policeman  secretly  bored  a  hole  in  the  roof  of  appellant's  build- 
ing, for  the  purpose  of  determining,  by  a  view  from  that  point  of 
observation,  whether  or  not  he  was  conducting  therein  a  gambling  or 
lottery  game.  This  fact  came  to  the  knowledge  of  appellant,  and 
upon  a  certain  night,  believing  that  the  policeman  was  upon  the  roof 

1  Accord  State  v.  "Wilson,  30  Conn.  505  ;  People  v,  Jones,  46  Mich.  441 ;  People  v. 
Moran,  123  N.  Y.  254.  And  see  Harvick  v.  State,  49  Ark.  514  ;  Clark  v.  State,  86 
Tenn,  511. 


SECT.  II.]  PEOPLE   V.    LEE   KOXG.  143 

at  the  contemplated  point  of  observation,  he  fired  his  pistol  at  the 
spot.  He  shot  in  no  fright,  and  his  aim  was  good,  for  the  bullet 
passed  through  the  roof  at  the  point  intended  ;  but  very  fortunately 
for  the  ollicer  of  the  law,  at  the  moment  of  attack  he  was  iii)on  the 
roof  at  a  different  spot,  viewing  the  scene  of  action,  and  tlius  no 
8ul)stantial  results  followed  from  ai)pellant's  fire. 

Tjie  intent  to  kill  is  (juite  apparent  from  tlie  evidence,  and  the 
single  question  is  presented,  Do_ the  facts  stated  constitute  an  assault? 
Our  criminal  code  defines  an  assault  to  be  "  an  unlawful  attempt, 
coupled  with  a  present  ability,  to  commit  a  violent  injury  upon  the 
person  of  another."  It  will  thus  be  seen  that  to  constitute  an  assault 
two  elements  are  necessary,  and  the  absence  of  either  is  fatal  to  the 
charge.  There  must  be  an  unlawful  attempt,  and  there  must  be  a 
present  ability,  to  infiict  the  injury.  In  this  case  it  is  plain  that  the 
appellant  made  "an  attempt  to  kill  the  olficer.  It  is  equally  plain  that 
this  attempt  was  an  unlawful  one.  For  the  intent  to  kill  was  present 
in  his  mind  at  the  time  he  fired  the  shot,  and  if  death  had  been  the 
result,  under  the  facts  as  disclosed,  tliere  was  no  legal  justification  to 
avail  him.  The  fact  that  the  ollicer  was  not  at  the  spot  where  the 
attacking  party  imagined  he  was,  and  where  the  bullet  pierced  the 
roof,  renders  it  no  less  an  attempt  to  kill.  It  is  a_jE ell-settled  prin- 
ciple of  criminal  law  in  this  country,  that  where  the  criminal  result 
of_an  attempt  is  not  accomplished  simply  because  of  an  obstruction 
in  the  way  of  the  thing  to  be  operated  upon,  and  these  facts  are  un- 
known to  the  aggressor  at  the  time,  the  criminal  attempt  is  committed. 
Tims  an  attempt  to  pick  one's  pocket  or  to  steal  from  his  person, 
when  he  has  nothing  in  his  pocket  or  on  his  person,  completes  the 
olTeuce  to  the  same  degree  as  if  he  had  money  or  other  personal  prop- 
erty which  could  be  the  subject  of  larceny.  State  v.  Wilson,  30 
Conn.  500  ;  Commonwealth  v.  McDonald,  5  Cnsh.  365  ;  People  v. 
Jones,  4fi  Mich.  411  ;  People  v.  Moran,  123  N.  Y.  254. 

Having  determined  that  appellant  was  guilty  of  an  unlawful  attempt 
to  kill,  was  such  attempt  coupled  with  the  present  ability  to  accom- 
plish the  deed?  In  the  case  of  People  v.  Yslas,  27  Cal.  633,  this 
court  said :  "  The  common-law  definition  of  an  assault  is  substan- 
tially the  same  as  that  found  in  our  statute."  Conceding  such  to  be 
the  fact,  we  cannot  indorse  those  authorities,  principally  English, 
which  hold  that  an  assault  may  be  committed  by  a  person  pointing 
in  a  threatening  manner  an  unloaded  gun  at  another  ;  and  this,  too, 
regardless  of  the  fact  whether  the  party  holding  the  gun  thought  it 
was  loaded,  or  whether  the  party  at  whom  it  was  menacingly  pointed 
was  thereby  placed  in  great  fear.  Under  our  statute  it  cannot  be 
said  that  a  person  with  an  unloaded  gun  would  have  the  present 
ability  to  intiict  an  injury  upon  another  many  yards  distant,  however 
apparent  and  unlawful  his  attempt  to  do  so  might  be.  It  was  held, 
in  the  case  of  State  v.  Swails,  8  Ind.  524,  that  there  was  no  assault 
to  commit  murder  where  A  fires  a  gun  at  B  at  a  distance  of  forty 


144  PEOPLE   V.   LEE   KONG.  [CHAP.  V. 

feet,  with  iutent  to  murder  him,  if  the  gun  is  in  fact  loaded  with 
powder  and  a  slight  cotton  wad,  although  A  believes  it  to  be  loaded 
with  powder  and  ball.  The  later  Indiana  cases  support  this  rule, 
although  in  Kunkle  v.  State,  32  Ind.  220,  the  court,  in  speaking  of 
the  Swails  case,  said:  "  But  if  the  case  is  to  be  understood  as  laying 
down  the  broad  proposition  that  to  constitute  an  assault  .  .  .  with 
intent  to  commit  felony,  the  intent  and  the  present  ability  to  execute 
must  necessarily  be  conjoined,  it  does  not  command  our  assent  or 
approval."  In  the  face  of  the  fact  that  the  statute  of  this  State  in 
terms  requires  that  in  order  to  constitute  an  assault  the  unlawful 
attempt  and  present  ability  must  be  conjoined,  Kunkle  v.  State,  32 
Ind.  220,  can  have  no  weight  here.  In  State  v.  Napper,  6  Nev.  115, 
the  court  reversed  the  judgment  upon  the  ground  that  the  people 
failed  to  prove  that  the  pistol  with  which  the  assault  was  alleged 
to  have  been  made  was  loaded,  and  that  consequently  there  was  no 
proof  that  the  defendant  had  the  present  ability  to  inflict  the 
injury. 

It  is  not  the  purpose  of  the  court  to  draw  nice  distinctions  between 
an  attempt  to  commit  an  offence  and  an  assault  with  intent  to  commit 
the  offence,  for  such  distinctions  could  only  have  the  effect  to  favor 
the  escape  of  criminals  from  their  just  deservings.  And  in  view  of 
the  fact  that  all  assaults  to  commit  felonies  can  be  prosecuted  as 
attempts,  we  can  see  no  object  in  carrying  the  discussion  of  the  sub- 
ject to  any  greater  lengths. 

In  this  case  the  appellant  had  the  present  ability  to  inflict  the  in- 
/  jury.  He  knew  the  officer  was  upon  the  roof,  and  knowing  that  fact 
\  he  fired  through  the  roof  with  the  full  determination  of  killing  him. 
The  fact  that  he  was  mistaken  in  judgment  as  to  the  exact  spot  where 
hi^s  intended  victim  was  located  is  immaterial.  That  the  shot  did 
not  fulfil  the  mission  intended  was  not  attributable  to  forbearance  or 
kindness  of  heart  upon  defendant's  part ;  neither  did  the  officer  es- 
cape by  reason  of  the  fact  of  his  being  so  far  distant  that  the  deadly 
missile  could  do  him  no  harm.  He  was  sufficiently  near  to  be  killed 
from  a  bullet  from  the  pistol,  and  his  antagonist  fired  with  the  intent 
of  killing  him.  Appellant's  mistake  as  to  the  policeman's  exact  loca- 
tion upon  the  roof  affords  no  excuse  for  his  act,  and  causes  the  act 
to  be  no  less  an  assault.  These  acts  disclose  an  assault  to  murder  as 
fully  as  though  a  person  should  fire  into  a  house  with  the  intention 
of  killing  the  occupant,  who  fortunately  escaped  the  range  of  the 
bullet.  See  Cowley  v.  State,  10  Lea,  282.  The  fact  that  the  shots 
were  directed  indiscriminately  into  the  house  rather  than  that  the 
intended  murderer  calculated  that  the  occupant  was  located  at  a  par- 
ticular spot,  and  then  trained  his  fire  to  that  point,  could  not  affect 
the  question.  The  assault  would  be  complete  and  entire  in  either 
case.  If  a  man  intending  murder,  being  in  darkness  and  guided  by 
sound  only,  should  fire,  and  the  bullet  should  pierce  the  spot  where 
the  party  was  supposed  to  be,  but  by  a  mistake  in  hearing  the  in- 


SECT.  III.]  WRIGHT'S   CASE.  145 

tended  victim  was  not  at  the  poiut  of  danger,  but  some  distance 
tiiorefroHJ,  and  yet  within  reach  of  the  pistol-ball,  the  crime  of  assault 
to  commit  murder  would  be  made  out ;  for  the  unlawful  attempt  and 
the  present  ability  are  found  coupled  together.  If  appellant's  aim 
had  not  been  good,  or  if  through  fright  or  accident  when  pointing 
the  weapon  or  pulling  the  trigger,  or  if  the  ball  had  been  deflected  in 
its  course  from  the  intended  point  of  attack,  and  by  reason  of  the 
occurrence  of  any  one  of  these  contingencies  the  party  had  been  shot 
and  killed,  a  murder  would  have  been  committed.  Such  being  the 
fact,  the  assault  is  established. 

The  fact  of  itself  that  the  policeman  was  two  feet  or  ten  feet  from 
the  spot  where  the  fire  was  directed,  or  that  he  was  at  the  right  hand 
or  at  the  left  hand  or  behind  the  defendant  at  the  time  the  shot  was 
fired,  is  immaterial  upon  this  question.  That  element  of  the  case 
does  not  go  to  the  question  of  present  ability,  but  pertains  to  the 
unlawful  attempt. 

Let  the  judgment  and  order  be  affirmed. 

Patteuson,  J.,  concurred. 

Haruison,  J.,  concurring.  I  concur  in  the  judgment,  upon  the 
ground  that  upon  the  evidence  before  them  the  jury  have  determined 
that  the  unlawful  attempt  of  the  defendant  was  coupled  with  a  present 
ability  —  that  is,  an  ability  by  the  means  then  employed  by  him  in 
furtherance  of  such  attempt  —  to  commit  murder  upon  the  policeman. 


SECTION  III. 

Effect  of  Act  of  the  Injured  Party. 

((()  Consent. 

WRIGHT'S   CASE. 

Leicester  Assizes.     1604. 

[Reported  Co.  Lit.  127  a.] 

In  my  circuit  in  anno  1  Jacohi  regis,  in  the  count}'  of  Leicester,  one 
Wright,  a  young,  strong,  and  lustie  rogue,  to  make  hiinselfe  impotent, 
thereby  to  have  the  more  colour  to  begge  or  to  be  relieved  without  put- 
ting himselfe  to  an}'  labour,  caused  his  companion  to  strike  off  his  left 
hand  ;  and  both  of  them  were  indicted,  fined,  and  ransomed  there- 
fore, and  that  by  the  opinion  of  the  rest  of  the  justices  for  the  cause 
aforesaid. 

10 


146  EEGINA  V.   BRADSHAW.  [CHAP.  V. 


EEGINA  V.  MARTIN. 
CRO^\^;  Case  Reserved.     1840. 

[Reported  2  Moody,  123.] 

The  prisoner  was  tried  before  Mr.  Baron  Aklerson  upon  an  indict- 
ment, the  first  count  of  which  charged  him  with  carnally  knowing  and 
abusing  ILsther  Ricketts,  a  girl  above  ten  and  under  twelve  ^"ears  of  age. 

The  second  count  was  for  an  assault  on  Esther  Ricketts  with  intent 
carnall}'  to  know  and  abuse  her.  The  third  count  was  for  a  common 
assault. 

Godson,  for  the  prisoner,  contended  that,  supposing  the  fact  to  have 
been  done  b}-  the  consent  of  the  prosecutrix,  no  conviction  could  take 
place  on  the  second  and  third  counts. 

The  learned  judge  left  the  question  to  the  jur}-,  who  found  the  fact 
that  the  prosecutrix  had  consented ;  and  he  then  directed  a  verdict  of 
guilty  on  the  ground  that  the  prosecutrix  was  bylaw  incapable  of  giving 
her  consent  to  what  would  be  a  misdemeanor  b}'  statute. 

But  as  Godson  stated  that  the  point  was  doubtful  and  had  been 
otherwise  decided  before,  the  learned  judge  respited  the  judgment. 

It  appeared  to  the  learned  judge  clear  that  if  the  indictment  had 
charged  an  attempt  to  commit  the  statutable  misdemeanor,  the  pris- 
oner would  clearly  have  been  liable  to  conviction  ;  but  the  learned  judge 
was  not  free  from  doubt  as  to  the  present  case,  in  M'hich  an  assault  was 
charged. 

This  case  was  considered  at  a  meeting  of  the  judges  in  Hilary  term, 
1840.  and  they  all  thought  that  the  proper  charge  was  of  a  misdemeanor 
in  attempting  to  commit  a  statutable  offence,  and  that  the  conviction 
was  wrong.-^ 


REGINA  V.  BRADSHAW. 

Leicester  Assizes.     1878. 

[Reported  14  Cox  C.  C.  83.] 

William  Bradshaw  was  indicted  for  the  manslaugliter  of  Herbert 
Dockerty,  at  Ashby-de-la-Zoucb,  on  the  28th  day  of  February. 

1  "  It  is  a  prfsumption  of  law  that  a  girl  under  ten  years  of  age  is  incapable  of  con- 
senting to  the  offence  of  rape  (Pen.  Code,  sec.  261);  and  as  such  an  offence  includes  an 
attempt  to  commit  it,  accompanied  by  such  force  and  riolence  upon  the  person  as  con- 
stitutes an  a.ssault,  a  girl  under  ten  years  of  age  is  incapable  in  law  of  consenting  to 
the  assault  in  connection  with  the  attempt  to  commit  the  ofTence.  "Wliether  the  girl 
in  fact  consented  or  resisted  is  therefore  immaterial.  Being  incapable  of  consenting  to 
an  act  of  carnal  intercourse,  it  was  criminal  for  the  defendant  to  make  an  assault  upon 
her  to  commit  such  an  act."     McKee,  J.,  in  People  v.  Gordon,  70  Cal.  467,  468.  —  Ed. 


SECT.  III.]  KEGINA   V.   liUADSHA\V.  147 

The  deceased  met  with  the  injury  whicli  caused  his  death  on  the 
occasion  of  a  football  match  i)hi3cd  between  tiie  football  clubs  of  Ashby- 
de-la-Zouch  and  Coalville,  in  which  the  deceased  was  a  player  on  the 
Ashby  side,  and  the  prisoner  was  a  player  on  the  Coalville  side.  The 
game  was  played  according  to  certain  rules  known  as  the  "  Association 
Rules."  ^  After  the  game  had  proceeded  about  a  quarter  of  an  hour, 
the  deceased  was  "dribbling"  the  ball  along  the  side  of  the  ground  in 
the  direction  of  the  Coalville  goal,  when  he  was  met  l)y  the  prisoner, 
who  was  running  towards  him  to  get  the  ball  from  him  or  prevent  its 
further  progress  ;  both  players  were  running  at  considerable  speed  ;  on 
approaching  each  other,  the  deceased  kicked  the  ball  beyond  the  pris- 
oner, and  the  prisoner,  by  way  of  "charging"  the  deceased,  jumped  iu 
the  air  and  struck  him  with  his  knee  in  the  stomach.  The  two  met, 
not  directly  but  at  an  angle,  and  both  fell.  The  prisoner  got  up  un- 
hurt, but  the  deceased  rose  with  difficulty  and  was  led  from  the  ground. 
He  died  next  day  after  considerable  sutfering,  the  cause  of  death  being 
a  rupture  of  the  intestines. 

Witnesses  were  called  from  both  teams  whose  evidence  ditfered  as  to 
some  particulars,  those  most  unfavorable  to  the  prisoner  alleging  that 
the  ball  had  been  kicked  by  the  deceased  and  had  passed  the  prisoner 
before  he  charged  ;  that  the  prisoner  had  therefore  no  right  to  charge 
at  the  time  he  did  ;  that  the  charge  was  contrary  to  the  rules  and  prac- 
tice of  the  game  and  made  in  an  unfair  manner,  with  the  knees  protrud- 
ing ;  while  those  who  were  more  favorable  to  the  prisoner  stated  that 
the  kick  by  the  deceased  and  the  charge  by  the  prisoner  were  simultan- 
eous, and  that  the  prisoner  had  therefore,  according  to  the  rules  and 
practice  of  the  game,  a  right  to  make  the  charge,  though  these  wit- 
nesses admitted  that  to  charge  by  jumping  with  the  knee  protruding 
was  unfair.  One  of  the  umpires  of  the  game  stated  that  in  his  opinion 
nothing  unfair  had  been  done.^ 

Bkamwell,  L.  J.,  in  summing  up  the  case  to  the  jury,  said :  "  The 
question  for  j-ou  to  decide  is  whether  the  death  of  the  deceased  was 
caused  by  the  unlawful  act  of  the  prisoner.  There  is  no  doubt  that  the 
prisoner's  act  caused  the  death,  and  the  question  is  whether  that  act 
was  unlawful.  No  rules  or  practice  of  any  game  whatever  can  make 
that  lawful  which  is  unlawful  by  the  law  of  the  land  ;  and  the  law  of 
the  land  says  you  shall  not  do  that  which  is  hkely  to  cause  the  death  of 
another.  For  instance,  no  persons  can  by  agreement  go  out  to  fight 
with  deadly  weapons,  doing  b}'  agreement  what  the  law  says  shall  not 
be  done,  and  thus  shelter  themselves  from  the  consequences  of  their 
acts.     Therefore,  in  one  way  you  need  not  concern  yoursc^lves  with  the 

1  Etheringt(yji  Smith,  in  opening  the  case  for  the  prosecution,  was  proceeding  to  ex- 
plain the  "Association  Rules"  to  the  jury,  and  to  comment  upon  the  fact  of  whether 
the  jjiisouer  was  or  was  not  acting;  within  those  rules,  when  Brain  well,  L.  J.,  inter- 
posed, saying,  "  Whether  within  the  rules  or  not  the  prisoner  would  he  guilty  of  man- 
slaughter if  while  committing  an  unlawful  act  he  caused  the  death  of  the  deceased." 

*  Arguments  of  counsel  are  omitted. 


148  COMMONWEALTH   V.    COLLBERG.  [CHAP.  V. 

rules  of  football.  But,  ou  the  other  hand,  if  a  man  is  playiug  accord- 
ing to  the  rules  and  practice  of  the  game  and  not  going  beyond  it,  it 
may  be  reasonable  to  infer  that  he  is  not  actuated  by  any  malicious 
motive  or  intention,  and  that  he  is  not  acting  in  a  manner  which  he 
knows  will  be  likely  to  be  productive  of  death  or  injury.  But,  inde- 
pendent of  the  rules,  if  the  prisoner  intended  to  cause  serious  hurt  to 
the  deceased,  or  if  he  knew  that  in  charging  as  he  did  he  might  produce 
serious  injury,  and  was  indilferent  and  reckless  as  to  whether  he  would 
produce  serious  injury  or  not,  tlien  the  act  would  be  unlawful.  In 
either  case  he  would  be  guilty  of  a  criminal  act,  and  you  must  find  him 
guilty ;  if  you  are  of  a  contrar}'  opinion  you  will  acquit  him."  His 
lordship  carefully  reviewed  the  evidence,  stating  that  no  doubt  the 
game  was,  in  any  circumstances,  a  rough  one  ;  but  he  was  unwilling  to 
decry  the  maul}'  sports  of  this  country,  all  of  which  were  no  doubt 
attended  with  more  or  less  danger.  Verdict^  Not  guilty. 


COMMONWEALTH  v.  COLLBERG. 
Supreme  Judicial  Court  of  Massachusetts.     1875. 

[Reported  119  Mass.  350.] 

Two  indictments :  one  for  an  assault  and  batter}-  by  Benjamin  F. 
CoUberg  upon  Charles  E.  Phenix  ;  and  the  other  for  an  assault  and  bat- 
ter}'  by  Phenix  upon  CoUberg.  Both  indictments  were  founded  upon 
and  supported  bj-  the  same  evidence.  ^ 

At  the  trial  of  the  two  indictments  in  the  Superior  Court  before 
Lord,  J.,  there  was  evidence  for  the  Commonwealth  tending  to  sliow 
that  about  six  o'clock  on  the  evening  of  Sunday,  August  22,  1875, 
CoUberg  and  Phenix  met  near  the  station  of  the  Boston  and  Maine 
Railroad  in  Maiden  and  had  a  slight  altercation,  as  a  result  of  which 
CoUberg  bantered  Phenix  to  fight  him  ;  that  Phenix  declined  on  the 
ground  that  he  did  not  want  to  fight  with  his  best  clothes  on,  but  said 
that  if  CoUberg  would  wait  until  he  could  go  home  and  change  his 
clothes,  they  would  go  to  some  place  outside  of  the  town  and  settle  it ; 
that  thereupon  Phenix  did  go  home  and  change  his  clothes,  and  he  and 
CoUberg  met  at  a  retired  place,  remote  from  habitations  and  thorough- 
fares, and  fought  with  each  other  in  the  presence  of  some  fifty  or  sevent}'- 
five  persons  who  had  gathered  there,  and  that  the  fight  continued  until 
CoUberg  said  that  he  had  enough,  when  it  ceased  and  the  parties  went 
home  ;  that  the  next  day  CoUberg  and  Phenix  were  a  good  deal  bruised 
and  looked  as  if  they  had  been  fighting. 

The  defendants  testified  tliat  they  had  been  acquainted  with  each 
other  for  a  period  of  five  or  six  years,  during  which  time  they  had 
alwa3's  been  on  the  most  friendly  terras,  and  were  so  at  the  time  of  the 
act  complained  of,  and  subsequently- ;  that  during  the  period  of  their 


SECT.  III.]  COMMONWEALTH   V.   COLLBERG.  149 

acquaintance  they  had  engaged  at  various  times  in  wrestling-matches 
with  each  other,  all  of  wliich  had  been  carried  on  in  a  friendly  spirit 
and  without  engendering  any  ill  feeling  between  them  ;  that  on  the  day 
mentioned  in  the  indictment  they  mot  towards  evening  near  the  station 
of  the  Boston  and  Maine  Railroad  in  Maiden,  where  they  had  some  talk 
about  a  recent  wrestling-match  that  had  taken  place  in  New  York,  and 
growing  out  of  this,  as  to  previous  contests  of  this  character  which  had 
taken  place  between  them  ;  that  after  some  talk  aI)out  their  matches, 
they  agreed  to  go  then  to  some  place  where  they  should  not  disturb  any 
one  and  have  another  trial  of  their  agility  and  strength  in  this  direction  ; 
that  they  shortly  afterwards  went  to  such  a  place  and  engaged  in  a 
"  run  and  catch  "  wrestle  with  each  other,  without  any  anger  or  malice, 
or  any  intention  to  do  each  other  bodily  harm  ;  that  any  injuries  which 
they  inflicted  upon  each  other  were  inflicted  accidentally  and  by  mutual 
consent  while  voluntarily  continuing  in  such  contest. 

There  was  no  evidence  of  any  uproar  or  outcries  when  the  contest 
took  place,  or  that  any  one  was  disturbed  thereby,  except  that  the  par- 
ties were  fighting  in  presence  of  a  crowd  of  from  fifty  to  one  hundred 
persons  who  had  collected  together.  After  the  evidence  was  all  in,  the 
defendants  asked  the  judge  to  instruct  the  jury  as  follows  :  — 

"  If  the  jury  are  satisfied  that  whatever  acts  and  things  the  defend- 
ants did  to  each  other  they  did  by  mutual  consent,  and  that  the  struggle 
between  them  was  an  amicable  contest  voluntarily  continued  on  both 
sides  without  anger  or  malice,  and  simply  for  the  purpose  of  testing 
their  relative  agilitj'  and  strength,  then  there  is  no  assault  and  battery, 
and  the  defendants  must  be  acquitted." 

Tiie  judge  declined  to  give  this  instruction,  but  instructed  the  jury 
upon  this  branch  of  the  case  in  substance  as  follows  :  "  That  if  the  de- 
fendants were  simply  engaged  in  a  wrestUng  match,  that  being  a  lawful 
sport,  they  could  not  be  convicted  of  an  assault  and  battery  ;  but  if  by 
mutual  agreement  between  themselves,  previously  made,  they  went  to 
a  retired  spot  for  the  purpose  of  fighting  with  each  other  and  for  the 
purpose  of  doing  each  other  physical  injury  by  fighting,  with  a  view  to 
ascertain  by  a  trial  of  their  skill  in  fighting  which  was  the  best  man, 
and  there  engaged  in  a  fight,  each  endeavoring  to  do  and  actuall}' doing 
all  the  physical  injury  in  his  power  to  the  other,  and  if,  in  such  contest, 
each  did  strike  the  other  with  his  fist  for  the  purpose  of  injuring  him, 
each  may  properly  be  convicted  of  assault  and  battery  upon  the  other, 
although  the  whole  was  done  by  mutual  arrangement,  agreement,  and 
consent,  and  without  anger  on  the  part  of  either  against  the  other." 

To  this  instruction,  and  to  the  refusal  of  the  judge  to  give  the  in- 
struction prayed  for,  the  defendants  alleged  exceptions. 

G.  S.  Scammon,  for  the  defendants. 

W.  C.  Loring  {C.  B.  Train,  Attorne}'- General,  with  him),  for  the 
Commonwealth. 

Enpicott,  J.  It  appears  by  the  bill  of  exceptions  that  the  parties 
by  mutual  agreement  went  out  to  fight  one  another  in  a  retired  place, 


150  COMMONWEALTH  V.   COLLBERG.  [CHAP.  V. 

and  did  fight  in  the  presence  of  from  fifty  to  one  hundred  persons. 
Both  were  bruised  in  the  encounter,  iind  the  fight  continued  until  one 
said  that  he  was  satisfied.  There  was  also  evidence  that  the  parties 
went  out  to  engage  in  and  did  engage  in  a  "  run  and  catch  "  wrestling 
match.  We  are  of  opinion  that  the  instructions  given  by  the  presiding 
judge  contained  a  full  and  accurate  statement  of  the  law. 

The   common   law  recognizes   as  not  necessarily  unlawful  certain 
manly  sports  calculated  to  give  bodily  strength,  skill,  and  activity,  and 
"  to  fit  people  for  defence,  public  as  well  as  personal,  in  time  of  need." 
Playing  at  cudgels  or  foils,  or  wrestUng  by  consent,  there  being  no 
motive  to  do  bodily  harm  on  either  side,  are  said  to  be  exercises  of 
this  description.     Fost.  C.  L.  259,  260;  Com.  Dig.  Plead.  3  m.  18. 
But  prize-fighting,  boxing-matches,  and  encounters  of  that  kind  serve 
no   useful  purpose,  tend  to  breaches  of  the  peace,  and  are  unlawful 
even  when  entered  into  by  agreement  and  without  anger  or  mutual  ill- 
will.     Fost.  C.  L.  260  ;  2  Greenl.  on  Ev.  §  85  ;  1  Stephens  N.  P.  211. 
If  one  party  license  another  to  beat  him,  such  license  is  void,  because 
it  is  against  the  law.     Matthew  v.  Ollerton,  Comb.  218.     In  an  action 
for  assault  the  defendant  attempted  to  put  in  evidence  that  the  plain- 
tiflT  and  he  had  boxed  by  consent,  but  it  was  held  no  bar  to  the  action, 
for  boxing  was  unlawful,  and  the  consent  of  the  parties  to  fight  could 
not  excuse  the  injury.     Boulter  v.  Clark,  Bull.  N.  P.  16.     The  same 
rule  was  laid  down  in  Stout  v.  Wren,  1  Hawks  (N.  C),  420,  and  in 
Bell  y.  Hansley,  3  Jones  (N.  C),  131.     In  Adams  v.  Waggoner,  33 
Ind.  531,  the  authorities  are  reviewed,  and  it  was  held  that  it  was  no 
bar  to  an  action  for  assault  that  the  parties  fought  with  each  other  by 
mutual  consent,  but  that  such  consent  may  be  shown  in  mitigation  of 
damages.     See  Logan  v.  Austin,  1  Stew.  (Ala.)  476.     It  was  said  by 
Colerrdge,  J.,  in  Regina  v.  Lewis,  1  C.  &  K.  419,  that  "  no  one  is  justi- 
fied in  striking  another  except  it  be  in  self-defence,  and  it  ought  to  be 
known  that  whenever  two  persons  go  out  to  strike  each  other,  and  do 
so,  each  is  guilty  of  an  assault;"  and  that  it  was  immaterial  who 
strikes  the  first  blow.     See  Rex  v.  Perkins,  4  C.  &  P.  537. 

Two  cases  only  have  been  called  to  our  attention  where  a  diflferent 
rule  has  been  declared.  In  Champer  v.  State,  14  Ohio  St.  437,  it  was 
held  that  an  indictment  against  A.  for  an  assault  and  battery  on  B.  was 
not  sustained  by  evidence  that  A.  assaulted  and  beat  B.  in  a  fight  at 
fisticuflTs,  by  agreement  between  them.  This  is  the  substance  of  the 
report,  and  the  facts  are  not  disclosed.  No  reasons  are  given  or  cases 
cited  in  support  of  the  proposition,  and  we  cannot  but  regard  it  as 
opposed  to  the  weight  of  authority.  In  State  v.  Beck,  1  Hill  (S.  C), 
3G3,  the  opinion  contains  statements  of  law  in  which  we  cannot  concur. 

Exceptions  overruled. 


SECT.  III.]  COMMONWEALTH   V.   SLATTERY.  151 

SECTION   III.   (continued), 

{b)  Condonation. 

4  Bl.  Com.  133.  Theft  bote  is  where  the  party  robbed  not  only 
knows  tlie  felon,  but  also  takes  his  goods  again,  or  other  amends  upon 
agreement  not  to  prosecute.  This  is  frequently  called  comijounding  of 
felony  ;  and  formerly  was  held  to  make  a  man  an  accessory  ;  but  it  is 
now  punished  only  with  fine  and  imprisonment.  This  perversion  of 
justice,  in  the  old  Gothic  constitutions,  was  liable  to  the  most  severe 
and  infamous  punishment.  And  the  Salic  law  '' latroni  eum  similem 
habuit,  qui  fertum  celare  vellet,  et  occxdte  sine  judice  com^wsitionem 
ejus  admittere."  By  statute  25  Geo.  II.  c.  36,  even  to  advertise  a  re- 
ward for  the  return  of  things  stolen,  with  no  questions  asked,  or  words 
to  the  same  purport,  subjects  the  advertiser  and  the  printer  to  a  forfeit- 
ure of  £50  each.^  1  IlaAvk.  P.  C.  ch.  7,  sect.  7.  But  the  bare  taking 
of  one's  own  goods  again  which  have  been  stolen  is  no  offence  at  all 
unless  some  favor  be  shown  to  the  thief. 


COMMONWEALTH   v.  SLATTERY. 
Supreme  Judicial  Court  of  Massachusetts.     1888. 

[Reported  147  Mass.  423.] 

Indictment  for  rape  on  Bridget  Donovan.^  At  the  trial  in  the  Supe- 
rior Court,  before  Dunbar,  J.,  the  defendant  asked  the  judge  to  instruct 
the  jury  "  that,  if  said  Donovan  at  any  time  after  the  act  excused  or 
forgave  the  defendant,  then  she  ratified  the  act,  and  he  cannot  be  con- 
victed in  the  case."  The  judge  refused  so  to  instruct,  but  instructed 
the  jury  that  evidence  of  her  acts  and  conversation  with  the  defendant, 
both  before  and  after  the  commission  of  the  alleged  offence,  was  a  proper 
subject  for  their  consideration  in  determining  the  guilt  or  innocence  of 
the  defendant  at  the  time  of  its  commission.  The  defendant  alleged 
exceptions. 

W.  Allen,  J.  The  court  rightly  refused  to  give  the  instructions 
requested.  The  injured  party  could  not  condone  the  crime  by  excusing 
or  forgiving  the  criminal. 

1  See  Reg.  v.  Burgess,  15  Cox  C.  C.  779. 

2  Only  so  much  of  the  case  as  involves  the  question  of  condonation  is  pnnted. 


152  mcdaniel's  case.  [^chap.  v 

SECTION  III.  {continued). 

(c)  Acquiescence  for  Detection. 

McDANIEL'S   CASE. 
Crown  Case  Reserved.     1755. 

[Reported  Foster  C.  L.  121.] 

At  the  Old  Baile}-  session  in  December,  1755,  Justice  Foster  pro- 
nounced the  judgment  of  the  court  in  the  case  between  the  King  and 
Macdauiel  and  others,  to  the  effect  following  :  — 

The  indictment  chargeth,  that  at  the  general  gaol-deliveiy  holden  at 
Maidstone  in  the  county  of  Kent,  on  the  13th  of  August  in  the  twenty- 
eighth  year  of  the  King,  Peter  Kellj-  and  John  Ellis  were  b}'  due  course 
of  law  convicted  of  a  felony  and  robbery  committed  by  them  in  the 
King's  highway  in  the  parish  of  Saint  Paul  Deptford  in  the  countv  of 
Kent,  upon  the  person  of  James  Salmon  one  of  the  prisoners  at  the  bar, 
and  that  the  prisoners  Stephen  Macdaniel,  John  Berr}',  James  Eagen, 
and  James  Salmon,  before  the  said  robber}',  did  in  the  parish  of  Saint 
Andrew  Holbourn  in  this  city,  feloniously  and  maliciousl}'  comfort,  aid, 
assist,  abet,  counsel,  hire,  and  command  the  said  Peter  Kellj'  and  John 
Ellis  to  commit  the  said  felon}'  and  robber}'. 

On  this  indictment  the  prisoners  have  been  tried,  and  the  jury  have 
found  a  special  verdict  to  this  effect.  > 

That  Kelly  and  Ellis  were  by  due  course  of  law  convicted  of  the  said 
felony  and  robbery. 

That  before  the  robbery  all  the  prisoners  and  one  Thomas  Blee,  in 
order  to  procure  to  themselves  the  rewards  given  by  act  of  Parliament 
for  apprehending  robbers  on  the  highway,  did  maliciously  and  feloni- 
ously meet  at  the  Bell  Inn  in  Holbourn  in  this  city ;  and  did  then  and 
there  agree  that  the  said  Thomas  Blee  should  procure  two  persons  to 
commit  a  robbery  on  the  highway  in  the  parish  of  Saint  Paul  Deptford, 
upon  the  person  of  the  prisoner  Salmon. 

That  for  that  purpose  they  did  all  maliciously  and  feloniously  con- 
trive and  agree  that  the  said  Blee  should  inform  the  persons  so  to  be 
procured  that  he  would  assist  them  in  stealing  linen  in  the  parish  of 
Saint  Paul  Deptford. 

That  in  pursuance  of  this  agreement,  and  with  the  privity  of  all  the 
prisoners,  the  said  Blee  did  engage  and  procure  the  said  Ellis  and  Kelly 
to  go  with  him  to  Deptford  in  order  to  steal  linen ;  but  did  not  at  any 
time  before  the  robbery  inform  them  or  either  of  them  of  the  intended 
robbery. 

That  in  consequence  of  the  said  agreement  at  the  Bell,  and  with  the 
privity  of  all  the  prisoners,  the  said  Ellis  and  Kelly  went  with  the  said 
Blee  to  Deptford. 


[SECT.  III.  McDANIEL'S   CASE.  153 

Thiit  the  said  Blec,  Ellis,  and  Kelly  being  there,  and  the  prisoner 
Salmon  being  likewise  there  waiting  in  the  highway  in  pursuance  of  the 
said  agreement,  the  said  Blee,  Ellis,  and  Kelly  feloniously  assaulted 
him,  and  toolc  from  his  person  the  money  and  goods  mentioned  in  the 
indictment. 

They  farther  find  that  none  of  the  prisoners  had  an^'  conversation 
with  the  said  Ellis  and  Kelly  or  either  of  them  previous  to  the  robbery  ; 
Init  they  find,  that  before  the  rol)bery  the  prisoners  Macdaniel,  Eageu, 
and  Berry  saw  the  said  Ellis  and  Kell}',  and  approved  of  them  as  per- 
sons proper  for  the  purpose  of  robbing  the  said  Salmon. 

But  whether  the  prisoners  are  guilty  in  manner  as  charged  in  the 
indictment,  they  pra}'  the  advice  of  the  court. 

This  special  verdict  hath  been  argued  before  all  the  judges  of 
England.^ 

It  is  expressl}'  found  that  Salmon  was  party  to  the  original  agree- 
ment at  the  Bell ;  that  he  consented  to  part  with  his  money  and  goods 
under  color  and  pretence  of  a  robbery ;  and  that  for  that  purpose,  and 
in  pursuance  of  this  consent  and  agreement,  he  went  to  Deptford,  and 
waited  there  till  this  colorable  robbery  was  effected. 

This  being  the  state  of  the  case  with  regard  to  Salmon,  the  judges 
are  of  opinion  that  in  consideration  of  law  no  robljory  was  committed 
on  him.     His  property  was  not  taken  from  him  against  his  will. 

I  come  now  to  the  case  which  I  promised  at  the  beginning  to  consider 
and  to  distinguish  from  the  present  case.  One  Norden,  having  been 
informed  that  one  of  the  early  stage-coaches  had  been  frequently  robbed 
near  the  town  by  a  single  highwayman,  resolved  to  use  his  endeavors  to 
apprehend  the  robber.  For  this  purpose  he  put  a  little  money  and  a 
pistol  into  his  pocket,  and  attended  the  coach  in  a  post-chaise,  till  the 
highwayman  came  up  to  the  compan}'  in  the  coach  and  to  him,  and  pre- 
senting a  weapon  demanded  their  money,  Norden  gave  him  the  little 
money  he  had  about  him,  and  then  jumped  out  of  the  chaise  with  his 
pistol  in  his  hand  ;  and  with  the  assistance  of  some  others  took  the 
highwayman. 

The  robber  was  indicted  about  a  3'ear  ago  in  this  court  for  a  robbery 
on  Norden,  and  convicted.  And  ver^'  properly,  in  m}'  opinion,  was  he 
convicted. 

But  that  case  differeth  widely  from  the  present.  In  that  case  Norden 
set  out  with  a  laudable  intention  to  use  his  endeavors  for  apprehending 
the  highwayman,  in  case  he  should  that  morning  come  to  rob  the  coach, 
which  at  that  time  was  totally  uncertain  ;  and  it  was  equally  uncertain 
whether  he  would  come  alone  or  not.  In  the  case  now  under  considera- 
tion there  was  a  most  detestalile  conspiracy  between  Salmon  and  the 
rest  of  the  prisoners,  that  his  property  should  be  taken  from  him  under 
the  pretence  and  show  of  a  robber}- ;  and  time,  place,  and  every  other 
circumstance  were  known  to  Salmon  beforehand,  and  agreed  to  by  him. 

1  Part  of  the  case  is  omitted. 


154  eggington's  case.  chap,  v.] 

In  Norden's  case  there  was  no  concert,  no  sort  of  connection  between 
him  and  the  highwa3'man ;  nothing  to  remove  or  lessen  the  difficulty  or 
danger  Norden  might  be  exposed  to  in  the  adventure.  In  the  present 
case  there  was  a  combination  between  Salmon  and  one  at  least  of  the 
supposed  robbers.  I  mean  Blee.  And  though  Salmon  might  not  know 
the  persons  of  Ellis  and  Kelly  ;  yet  he  well  knew  that  they  were  brought 
to  the  place  by  his  friend  Blee,  and  were  wholly  under  his  direction. 

So  widely  do  these  cases  differ ! 

To  conclude,  all  the  prisoners  have  been  guilty  of  a  most  wicked  and 
detestable  conspiracy  to  render  a  very  salutary  law  subservient  to  their 
vile,  corrupt  views.  But  great  as  their  offence  is,  it  doth  not  amount  to 
felony.  And  therefore  the  judgment  of  the  court  is  that  they  be  all 
discharged  of  this  indictment.^ 


EGGINGTON'S   CASE. 

Crown  Case  Reserved.     1801. 

[Reported  2  East,  Pleas  of  the  Crown,  666.] 

It  appeared  that  the  prisoners,  intending  to  rob  Mr.  Boulton's  manu- 
factory at  Soho,  had  applied  to  one  Phillips  his  servant,  who  was  em- 
ployed there  as  a  watchman,  to  assist  them  in  the  robbery.  Phillips 
assented  to  the  proposal  of  the  prisoners  in  the  first  instance ;  but 
immediately  afterwards  gave  information  to  Mr.  Boulton,  the  principal 
proprietor,  and  in  whom  the  property  of  the  goods  taken  (together 
with  other  persons  his  partners)  was  laid  ;  telling  him  what  was  in- 
tended, and  the  manner  and  time  the  prisoners  were  to  come  ;  that 
the^'^  were  to  go  into  the  counting-house,  and  that  he  was  to  open  the 
door  into  the  front  yard  for  them.  In  return,  Mr.  Boulton  told  him  to 
carry  on  the  business ;  that  he  (Boulton)  would  bear  him  harmless  ; 
and  Mr.  Boulton  also  consented  to  his  opening  tlie  door  leading  to  the 
front  yard,  and  to  his  being  with  the  prisoners  the  whole  time.  In  con« 
sequence  of  this  information,  Mr.  Boulton  removed  from  the  counting- 
house  everything  but  150  guineas  and  some  silver  ingots,  which  he 
marked  to  furnish  evidence  against  the  prisoners  ;  and  lay  in  wait  to 
take  them,  when  they  should  have  accomplished  their  purpose.  On  the 
23d  of  December,  about  one  o'clock  in  the  morning,  the  prisoners  came, 
and  Phillips  opened  the  door  into  the  front  yard,  through  which  they 
went  along  the  front  of  the  building,  and  round  into  another  yard 
behind  it,  called  the  middle  yard,  and  from  thence  they  and  Phillips 
went  through  a  door  which  was  left  open,  up  a  staircase  in  the  centre 
building  leading  to  the  counting-house  and  rooms  where  the  plated  busi- 
ness was  carried  on  ;  this  door  the  prisoners  bolted,  and  then  broke  open 

1  See  State  v.  Anoue,  2  N.  &  McC.  27;  Alexander  v.  State,  12  Tex.  541.  —  Ed. 


[sect.  III.  eggington's  case.  155 

the  counting-house  which  was  locked,  and  the  desks,  which  were  also 
locked  ;  and  took  from  thence  the  ingots  of  silver  and  guineas.  They 
then  went  to  the  story  above  into  a  room,  where  the  plated  business 
was  carried  on,  and  broke  the  door  open  and  took  from  thence  a  quan- 
tity of  silver,  and  returned  downstairs ;  when  one  of  them  unbolted 
the  door  at  the  bottom  of  the  stairs  which  had  been  bolted  on  their 
going  in,  and  went  into  the  midtllc  yard;  where  all  (except  one  who 
escaped)  were  taken  by  the  persons  placed  to  watch  them.  On  this 
case  two  points  were  made  for  the  prisoners :  First,  that  no  felony  was 
proved,  as  the  whole  was  done  with  the  knowledge  and  assent  of  Mr. 
Boulton,  and  that  the  acts  of  Phillips  were  his  acts.  Secondly,  that  if 
the  facts  proved  amounted  to  a  felony,  it  was  but  a  simple  larceny,  as 
the  building  broke  into  was  not  the  dwelling-house  of  any  of  the  per- 
sons whose  house  it  was  charged  to  be  ;  and  that  there  was  no  break- 
ing, the  door  being  left  open.  After  conviction,  the  case  was  argued 
before  all  the  judges  in  the  Exchequer  Chamber ;  and,  for  the  reasons 
before  stated,  all  the  judges  agreed  that  the  prisoners  were  not  guilty 
of  the  burglar}'.^ 

But  with  respect  to  the  larceny  the  majority  thought  there  was  no 
assent  in  Boulton;  that  his  object  being  to  detect  the  prisoners,  he 
only  gave  them  a  greater  facility  to  commit  the  larceny  than  they  other- 
wise might  have  had  ;  and  tliat  this  could  no  more  be  considered  as  an 
assent,  than  if  a  man,  knowing  of  the  intent  of  thieves  to  break  into 
his  house,  were  not  to  secure  it  with  the  usual  number  of  bolts.  That 
there  was  no  distinguishing  between  the  degrees  of  facility  a  thief  might 
have  given  to  him.  That  it  could  only  be  considered  as  an  apparent 
assent.  That  Boulton  never  meant  that  the  prisoners  should  take  away 
his  property.  And  the  circumstance  of  the  design  originating  with  the 
prisoners,  and  Boulton's  taking  no  step  to  facilitate  or  induce  the  offence 
until  after  it  had  been  thought  of  and  resolved  on  by  them,  formed  with 
some  of  the  judges  a  very  considerable  ingredient  in  the  case  ;  and  dif- 
fered it  much  from  what  it  miglit  have  been  if  Boulton  had  employed 
his  servant  to  suggest  it  originally  to  the  prisoners.  Lawrence,  J., 
doubted  whether  it  could  be  said  to  be  done  i7ivUo  doynino,  where  the 
owner  had  directed  his  servant  to  carry  on  the  business,  to  open 
the  door,  and  meant  that  the  prisoners  should  be  encouraged  by  the 
presence  of  that  servant ;  and  that  by  his  assistance  they  should  take 
the  goods,  so  as  to  make  a  complete  felony ;  though  he  did  not  mean 
that  they  should  carry  them  away.  Finally,  the  prisoners  were  recom- 
mended to  mercy  on  condition  of  being  transported  for  seven  years, 
the  punishment  they  would  have  been  liable  to  for  the  larceny.  The 
decision  in  the  above  case  is  consonant  to  the  rule  laid  down  in  tha 
civil  law  under  similar  circumstances.'' 

1  See  State  v.  Hayes,  105  Mo.  76,  16  s.  w.  514.  —  Ed. 
a  Vide  Just.  Inst.  lib.  4,  tit.  1,  s.  8. 


156  REX  V.    MARTIN.  [CHAP.  V. 


REX   V.   MARTIN. 

Crown  Case  Reserved.     1811. 

[Reported  Russell  <J-  Ryan,  196.] 

TuE  defendant  was  tried  before  Mr.  Baron  Wood,  at  the  Lent 
assizes,  for  Nortliauiptonsbire,  in  the  year  1811,  upon  an  indictment  for 
a  misdemeanor  in  unUiwfulU'  aiding  and  assisting  Antoine  Mallet,  a 
prisoner  at  war  detained  within  certain  limits  at  Northampton,  to 
escape  and  go  at  large  out  of  the  said  limits,  and  conducting  him 
and  bringing  him  to  Preston  Turnpike  Gate,  at  Northampton,  with 
intent  to  enable  and  assist  him  to  escape  and  go  at  large  out  of  this 
kingdom  to  parts  beyond  the  seas. 

The  case  appeared  to  be  this. 

The  defendant  lived  at  Wantage,  in  Berkshire  ;  she  came  to  Newport 
Pagnell,  and  there  hired  a  post-cbaise  to  take  her  to  Northampton,  and 
back.  The  post-boy  drove  her  to  Northampton,  where  she  got  out,  and 
the  post-boy  went  to  his  usual  inn,  with  orders  to  return  to  the  place 
where  he  set  her  down,  after  he  had  baited  and  rested  his  horses.  The 
post-boy  in  about  an  hour  returned,  took  the  defendant  up  again  in 
Northampton,  and  proceeded  towards  Newport,  and  when  they  had  just 
got  without  the  town  (and  within  the  limits  allowed  to  the  prisoners  of 
war,  being  one  mile  from  the  extremity  of  the  town),  she  called  to  the 
post-bo}'  to  stop  and  take  up  a  friend  of  hers  that  was  walking  along 
the  road.  The  post-boy  stopped,  and  Mallet  got  in,  and  they  pro- 
ceeded together  to  Preston  Turnpike  Gate  (which  is  without  the  afore- 
said limits),  in  the  road  to  Newport,  when  they  were  both  stopped  and 
apprehended  by  the  commissary,  or  agent  for  French  prisoners  and  his 
assistant  who  had  watched  them. 

It  appeared  in  evidence  that  there  was  no  real  escape  on  the  part  of 
Mallet,  but  that  he  was  employed  by  the  agent  for  French  prisoners, 
under  the  direction  of  the  Transport  Board  to  detect  the  defendant,  who 
w^as  supposed  to  have  been  instrumental  in  the  escape  of  many  French 
prisoners  from  Northampton,  and  that  all  the  acts  done  by  Mallet,  the 
contract  for  the  money  to  be  paid  to  the  defendant,  and  the  place  to 
which  they  were  to  go,  before  they  would  be  stopped,  were  previously 
concerted  between  the  agent  for  the  prisoners  and  Mallet,  and  Mallet 
had  no  intention  to  go  awa}'  or  escape. 

It  was  objected  to  by  the  counsel  for  the  defendant  that  the  commis- 
sar}', having  given  license  to  Mallet  to  go  to  the  place  he  did  go  to,  had 
enlarged  the  limits  of  his  parole  to  that  place,  and  therefore  Mallet 
could  not  be  said  to  have  escaped,  nor  could  the  defendant  be  said  to 
have  assisted  him  in  escaping  out  of  the  limits  of  his  parole. 

The  learned  judge  proceeded  in  the  trial,  and  the  defendant  was 
convicted,  but  he  respited  the  judgment  and  reserved  the  point  for  the 
consideration  of  the  judges. 


SECT.  III. J  liEX   V.    STUATTON.  157 

In  Trinity  term,  15tli  June,  1811,  all  the  judges  met  (except  Law- 
KENCE,  J.),  when  they  held  the  conviction  wrong,  inasmuch,  as  the 
prisoner  never  escaped,  or  intended  to  escape.' 


SECTION   III.   (continued), 

(d)    CONTRIUUTOKV    CrIMK. 

REX  V.  STRATTON. 
Nisi  Prics.     1809. 

[Reported  1  Campbell,  549.] 

Indictment  for  a  conspiracy  to  deprive  one  Thompson  of  the  office 
of  secretary  to  the  Philanthropic  Annuity  Society,  and  to  prosecute 
him,  without  any  reasonable  or  probable  cause,  for  obtaining  money 
upon  false  pi-etences.  It  appeared  that  this  society  is  an  unincorpor- 
ated company,  with  transferable  shares ;  that  there  was  a  violent  dis- 
pute among  the  subscribers  as  to  the  choice  of  secretary  ;  that  one 
party,  headed  by  the  defendants,  cashiered  the  prosecutor  ;  that  he 
still  went  on  collecting  subscriptions,  and  tliat  the}'  indicted  him  for 
obtaining  money  upon  false  pretences,  of  which  he  was  acquitted. 

Lord  Ellenborough.  This  society  was  certainly  illegal.  There- 
fore, to  deprive  an  individual  of  an  office  in  it,  cannot  be  treated  as  an 
injury.  When  the  prosecutor  was  secretary  to  the  society,  instead  of 
having  an  interest  which  the  law  would  protect,  he  was  guilty  of  a 
crime.  In  Dodd's  case,  all  the  judges  of  this  court  were  agreed  upon 
the  illegalit}-  of  these  associations ;  and  I  understand  there  has  since 
been  a  nonsuit  in  the  Common  Pleas  upon  the  same  ground.  Nor  can 
I  say  that  the  prosecutor  was  indicted  without  reasonable  or  probable 
cause.  I  thought  he  was  not  guilt}'  of  the  offence  imputed  to  him  ;  be- 
cause it  did  not  appear  that  he  acted  with  a  fraudulent  purpose.  But 
he  did  obtain  the  money  upon  a  false  pretence.  He  pretended  that 
there  was  then  a  real,  legal  society,  to  which  he  was  secretary  ;  whereas 
no  such  society  existed.     The  defendants  must  all  be  acquitted." 

»  See  State  v.  Douglass,  44  Kas.  618;  conf.  Reg.  v.  AVilliams,  1  C.  &  K.  195.  —  En. 
2  See  Rex  v.  Beacall,  1  C.  &  F.  454  ;  Reg.  u.  Hunt,  8  C.  &  P.  642 ;  Com.  c  Smith, 
129  MaRs.  104.  —  Kd. 


158  KEGINA  V.   HUDSON.  [CHAP.  V. 


REGINA  V. 


Central  Criminal  Court.    1845. 
[Reported  1  Cox  C.  C.  250.] 

The  defendant  was  indicted  for  uttering  counterfeit  coin.  Evidence 
was  adduced  to  show  tliat  he  had  given  a  counterfeit  sovereign  to  a 
girl  with  whom  he  had  had  intercourse. 

£odkin,  in  opening  the  case  for  the  prosecution,  referred  to  R.  v. 
Page,  8  C.  &  P.  122,  in  which  Lord  Abinger  ruled  that  the  giving  a 
piece  of  counterfeit  mone}'  away  in  charity  was  not  an  uttering  within  the 
2  Wm.  IV.  c.  34,  §  7,  although  the  person  giving  knew  it  to  be  coun- 
terfeit, as  there  must  be  some  intention  to  defraud.  The  learned 
counsel  contended  that  the  present  case  was  clearly  distinguishable, 
even  supposing  that  to  be  the  law,  and  he  apprehended  that  the  ques- 
tion for  the  jury  would  be,  whether  the  coin  had  been  passed  with  a 
knowledge  of  its  being  counterfeit  and  with  the  intention  of  putting  it 
into  circulation. 

Lord  Denman,  C.  J.  (in  summing  up).  As  to  the  law  of  this  case, 
my  learned  brother  (Coltman,  J.)  and  myself  are  clearly  of  opinion 
that  if  the  defendant  gave  the  com  to  the  woman  under  the  circum- 
stances stated,  knowing  it  to  be  counterfeit,  he  is  guilty  of  the  offence 
charged.  We  do  not  consider  the  decision  of  Lord  Abinger  to  be  in 
point ;  that  was  a  case  of  charity ;  at  the  same  time  we  have  great 
doubts  as  to  the  correctness  of  that  ruling,  and  if  a  similar  case  were  to 
arise  we  should  reserve  the  point.  ^ 


REGINA  V.  HUDSON. 
Crown  Case  Reserved.     1860. 

[Reported  8  Cox  C.  C.  305  ] 

Case  reserved  for  the  opinion  of  this  court,  by  J.  B.  Maule,  Esq., 
barrister-at-law,  sitting  as  Deputy  for  the  Recorder  of  York. 

At  the  Epiphany  Sessions,  1860,  held  for  the  city  of  York,  the  pris- 
oners were  jointly  indicted  and  tried  before  me  upon  an  indictment,  the 
two  first  counts  of  which  charged  them  with  an  offence  under  the  8  & 
9  Vict.  c.  109. 

Third  count.  The  prisoners  were  charged  with  a  conspiracy  to  cheat 
in  the  following  form  :  — 

"  That  they  unlawfully  and  fraudulently  did  combine,  confederate, 
and  conspire  together  with  divers  other  persons  to  the  jurors  unknown, 

1  Contra,  People  v.  Wilson,  6  Johns.  320.  —  Ed. 


SECT.  III.]  REGINA   V.   HUDSON.  159 

by  divers  unlawful  and  fraudulent  devices  and  contrivances,  and  by 
divers  false  pretences,  unlawfully  to  obtain  from  the  said  A.  Rhodes 
the  sum  of  £'2  10s.  of  the  money  of  the  said  A.  Rhodes,  and  unlaw- 
fully to  cheat  and  defraud  the  said  A.  Rhodes  of  the  same,  against  the 
peace,  etc."^ 

The  evidence  disclosed  that  the  three  prisoners  were  in  a  public  house 
together  with  the  prosecutor,  Abraham  Rhodes,  and  that  in  concert 
with  the  other  two  prisoners,  the  prisoner  John  Dewhirst  placed  a  pen- 
case  on  the  table  in  the  room  where  they  were  assembled  and  left  the 
room  to  get  writing-paper.  Whilst  he  was  absent  the  other  two  pris- 
oners, Samuel  Hudson  and  John  Smith,  were  the  only  persons  left 
drinking  with  the  prosecutor ;  and  Hudson  then  took  up  the  pen-case 
and  took  out  the  pen  from  it,  placing  a  pin  in  the  place  of  it,  and  put 
the  pen  that  he  had  taken  out  under  the  bottom  of  the  prosecutor's 
drinkiug-glass ;  and  Hudson  then  proposed  to  the  prosecutor  to  bet  the 
prisoner  Dewhirst  when  he  returned  that  there  was  no  pen  in  the  pen- 
case.  The  prosecutor  was  induced  by  Hudson  and  Smith  to  stake  50s. 
in  a  bet  with  Dewhirst  upon  his  returning  into  the  room,  that  there  was 
no  pen  in  the  pen-case ;  which  money  the  prosecutor  placed  on  the 
table,  and  Hudson  snatched  up  to  hold.  The  pen-case  was  then  turned 
up  into  the  prosecutor's  hand,  and  another  pen  with  the  pin  fell  into 
his  hand,  and  then  the  prisoners  took  his  money. 

Upon  this  evidence  it  was  objected,  on  behalf  of  the  prisoners,  that 
no  offence  within  the  meaning  of  the  8  &  9  Vict.  c.  109,  was  proved  by 
it,  and  that  the  facts  proved  in  evidence  did  not  amount  to  the  offence 
charged  in  the  third  count. 

I  thought  the  objection  well  founded  as  to  the  offence  under  the  8  & 
9  Vict.  c.  109,  but  held  that  the  facts  in  evidence  amounted  to  the 
offence  charged  in  the  third  count,  and  directed  the  jury  to  return  a 
separate  verdict  on  each  count,  a  case  having  been  asked  for  b}'  the 
prisoners'  counsel,  for  the  consideration  of  the  Court  for  Crown  Cases 
Reserved. 

The  jury  returned  a  verdict  of  guilty  on  each  of  the  three  counts. 

The  prisoners  were  sentenced  to  eight  months'  imprisonment,  and 
committed  to  prison  for  want  of  suflicient  sureties. 

If  the  court  for  the  consideration  of  Crown  Cases  Reserved  shall  be 
of  opinion  that  the  above  facts  in  evidence  constituted  in  law  any  one 
of  the  offences  charged  in  the  indictment,  and  was  evidence  to  go  to  the 
jury  in  support  thereof,  the  verdict  is  to  stand  for  such  of  the  counts  in 
which  the  offence  is  laid  to  which  the  evidence  applies. 

Price,  for  the  prisoners.  As  to  the  third  count,  to  sustain  that  the 
evidence  should  have  shown  such  a  false  pretence  as  j^^r  se  would  con- 
stitute the  ordinary  misdemeanor  of  false  pretences. 

Pollock,  C.  B.    Why  so?    This  is  a  count  for  conspiracy  to  cheat. 

Price.     Yes,  by  false  pretences. 

1  Only  so  much  of  the  case  as  relates  to  tliis  covmt  is  given.  —  Ed. 


160  COMMONWEAXTH   V.    MORRILL.  [CHAP.  V, 

Chasnell,  B.  If  the  count  had  said  merely  to  conspire,  and  had 
omitted  the  words  "  b}'  false  pretences,"  it  would  have  been  good. 

Blackdurn,  J.  Here  the  prisoners  cheated  the  prosecutor  into  the 
belief  that  he  was  going  to  cheat,  when  in  fact  he  was  to  be  cheated. 

Price.  This  is  a  mere  private  deceit,  not  concerning  the  public,  which 
the  criminal  law  does  not  regard,  but  is  a  deceit  against  which  common 
prudence  might  be  guarded.  There  is  no  evidence  of  any  indictable 
combination  to  cheat  and  defraud. 

Channell,  B.  If  two  persons  conspire  to  puff  up  the  qualities  of  a 
horse  and  thereby  secure  an  exorbitant  price  for  it,  that  is  a  criminal 
offence. 

Price.  That  affects  the  public.  At  the  trial  the  present  case  was 
likened  to  that  of  Rex  v.  Barnard,  7  C.  &  P.  784,  where  a  person  at 
Oxford,  who  was  not  a  member  of  the  universit}',  went  for  the  purpose 
of  fraud,  wearing  a  commoner's  gown  and  cap,  and  obtained  goods. 
This  was  held  a  sufficient  false  pretence.  The  present  case,  however, 
was  nothing  more  than  a  bet  on  a  question  of  fact,  which  the  prosecu- 
tor might  have  satisfied  himself  of  by  looking  at  the  pencil-case.  It  is 
more  like  an  ordinary  conjuring-trick.  Besides,  here  the  prosecutor 
himself  intended  to  cheat  one  of  the  prisoners  by  the  bet. 

No  counsel  appeared  for  the  prosecution. 

Pollock,  C.  B.  "We  are  all  of  opinion  that  the  conviction  on  the 
third  count  is  good  and  ought  to  be  supported.  The  count  is  in  the 
usual  form,  and  it  is  not  necessary  that  the  words  "false  pretences" 
stated  in  it  should  be  understood  in  the  technical  sense  contended  for 
by  Mr.  Price.  There  is  abundant  evidence  of  a  conspiracy  by  the  pris- 
oners to  cheat  the  prosecutor,  and  though  one  of  the  ingredients  in  the 
ease  is  that  the  prosecutor  himself  intended  to  cheat  one  of  the  prisoners, 
that  does  not  prevent  the  prisoners  from  liability  to  be  prosecuted  upon 
this  indictment.  Conviction  affirmed. 


COMMONWEALTH  y.  MORRILL. 
Supreme  Judicial  Court  of  Massachusetts.     1851. 

[Reported  8  Cushing,  571.] 

This  was  an  indictment  which  alleged  that  the  defendants,  Samuel 
G.  Morrill  and  John  M.  Hodgdon,  on  the  17th  of  September,  1850,  at 
Newburyport,  "  devising  and  intending  one  James  Lynch  by  false  pre- 
tences to  cheat  and  defraud  of  his  goods,  did  then  and  there  unlawfull}', 
knowingly,  and  designedly  falsely  pretend  and  represent  to  said  Lynch 
that  a  certain  watch  which  said  Morrill  then  and  there  had,  and  which 
said  Morrill  and  Hodgdon  then  and  there  proposed  and  oflfered  to  ex- 
change with  said  Lynch  for  two  other  watches  belonging  to  said  Lynch, 
was  a  gold  watch  of  eighteen  carats  fine  and  was  of  great  value,  to  wit, 
of  the  value  of  eighty  dollars  ;  and  the  said  Lynch,  then  and  there  be- 


Sy:CT.  Hi.]  COMMONWEALTH    r.    MORRILL.  161 

lieving  the  saitl  false  pretences  and  representations  so  made  as  af(jre- 
said  b}'  said  Morrill  and  Ilodgdou,  and  being  deceived  thereby,  was 
induced  by  reason  of  the  false  pretences  and  representations  so  made 
as  aforesaid  to  deliver,  and  did  then  and  there  deliver,  to  the  said  Mor- 
rill the  two  watclies  aforesaid,  belonging  t(j  said  Lynch,  and  of  the  value 
of  twenty  dollars,  and  the  said  Morrill  and  Ilodgdon  did  then  and  there 
receive  and  obtain  the  two  said  watches,  the  property  of  said  Lynch, 
as  aforesaid,  in  exchange  for  the  said  watch,  so  represented  as  a  gold 
watcli  as  aforesaid,  by  means  of  the  false  pretences  and  representa- 
tions aforesaid,  and  with  intent  to  cheat  and  defraud  the  said  Lynch  of 
his  said  two  watches,  as  aforesaid  ;  whereas  in  tiuth  and  in  fact  said 
watch  so  represented  by  said  Morrill  and  Ilodgdon  as  a  gold  watch, 
eighteen  carats  fine,  and  of  the  value  of  eighty  dollars,  was  not  then 
and  there  a  gold  watch,  and  was  not  then  and  there  eighteen  carats 
fine,  and  was  then  and  tliere  of  trifling  value,"  etc. 

At  the  trial  in  the  Court  of  Common  Pleas,  before  Hoar,  J.,  it  ap- 
peared in  evidence  that  Lynch  represented  his  watches,  one  of  which 
was  of  silver  and  the  other  of  yellow  metal,  as  worth  fifty  dollars  ;  and 
on  the  testimony  of  the  only  witness  for  the  Commonwealth  who  was  a 
judge  of  the  value  of  watches,  they  were  worth  not  exceeding  fifteen 
dollars.  Lynch  testified  that  his  silver  watch  cost  him  fifteen  dollars  ; 
that  he  received  the  other  in  exchange  for  two,  which  cost  him  respec- 
tively seven  dollars  and  thirteen  dollars  ;  and  that  he  believed  it  to  be 
worth  thirty  dollars. 

The  defendant  requested  the  presiding  judge  to  instruct  the  jury  that 
if  Lynch's  watches  were  not  worth  fifty  dollars,  or  sonie  considerable 
part  of  that  sum,  but  were  of  merely  trifling  value,  this  indictment 
could  not  be  maintained.  Hut  the  judge  instructed  the  jury  that  if  they 
supposed  that  each  of  the  parties  was  endeavoring  to  defraud  the  other, 
and  Lynch  knew  that  his  watches  were  of  little  value,  the  jur}-  should 
not  convict  the  defendants  merely  because  they  had  the  best  of  the  bar- 
gain ;  but  that  if  the  defendants  made  the  false  representations  charged 
in  the  indictment,  with  the  intent  to  defraud,  knowing  them  to  be  false, 
and  they  were  such  as  would  mislead  and  deceive  a  man  of  ordinary 
prudence,  and  Lynch,  by  reason  of  the  representations,  and  trusting  in 
them,  parted  with  his  propert}'  and  was  defrauded,  it  was  not  necessary 
to  show  that  he  was  defrauded  to  the  extent  charged  in  the  indictment, 
provided  he  in  good  faith  parted  with  property  which  he  believed  to  be 
valual)le,  and  was  defrauded  to  an}'  substantial  amount,  for  example, 
to  the  amount  of  five  dollars  ;  and  that  the  defendants  might  be  con- 
victed, although,  from  the  mistake  of  Lynch  in  over-estimating  his 
property,  he  might  not  have  been  cheated  to  so  great  an  extent  as  he 
at  the  time  supposed. 

Tlie  jury  found  the  defendants  guilty,  wlio  thereupon  moved  in  arrest 
of  judgment,  on  the  ground  that  the  indictment  was  insufficient;  ami 
this  motion  being  overruled,  they  alleged  exceptions  to  the  order  of  the 
court,  overruling  the  same,  and  also  to  the  instructions  aforesaid 

11 


162  JIcCORD   V.   PEOPLE.  [CHAP.  V. 

W.  C.  Endicottt  for  the  defendant 
Clifford.,  Attorney -General,  for  the  Conomonwealth. 
Dewey,  J.^  The  exceptions  taken  to  the  instructions  of  the  presid- 
ing judge  cannot  be  sustained.  If  it  were  true  that  the  party  from 
whom  the  defendants  obtained  goods  by  false  pretences  also  made 
false  pretences  as  to  his  goods  which  he  exchanged  with  the  defend- 
ants, that  would  be  no  justification  for  the  defendants,  when  put  on 
trial  upon  an  indictment  charging  them  with  obtaining  goods  by  false 
pretences,  knowing!}-  and  designedl}'  in  violation  of  a  statute  of  this 
Commonwealth.  Whether  the  alleged  misrepresentation  of  Lynch, 
being  a  mere  representation  as  to  the  value  or  worth  of  a  certain  watch 
and  an  opinion  rather  than  a  statement  of  a  fact,  would  be  such  false 
pretence  as  would  render  him  amenable  to  punishment  under  this 
statute,  might  be  questionable  ;  but  supposing  that  to  be  otherwise,  and 
it  should  appear  that  Lynch  had  also  violated  the  statute,  that  would 
not  justify  the  defendants.  If  the  other  part}'  has  also  subjected  him- 
self to  a  prosecution  for  a  like  offence,  he  also  may  be  punished.  This 
would  be  much  better  than  that  both  should  escape  punishment  because 
each  deserved  it  equall}'.^ 


McCORD  V.  PEOPLE. 
Court  of  Appeals  of  New  York.     187L 

[Reported  46  New  York,  470.] 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  first  depart- 
ment to  review  judgment,  affirming  judgment  of  the  Court  of  General 
Sessions  in  and  for  the  County  of  New  York,  convicting  the  plaintiflf  in 
error  upon  an  indictment  for  false  pretences. 

The  plaintiff  in  error,  Henry  McCord,  was  tried  and  convicted  in  the 
Court  of  General  Sessions  of  the  Peace,  in  and  for  the  County  of  New 
York,  at  the  June  term,  1870,  upon  an  indictment  charging  in  sub- 
stance that  with  intent  to  cheat  and  defraud  one  Charles  C.  Miller,  he 
falsel}'  and  fraudulent!}'  represented,  — 

"  That  he,  the  said  Henry  McCord,  was  an  officer  attached  to  the 
bureau  of  Captain  John  Young's  department  of  detectives,  and  that  he 
had  a  warrant  issued  b}'  Justice  Hogan,  one  of  the  police  justices  of 
the  city  of  New  York,  at  the  complaint  of  one  Henr}'  Brinker,  charging 
the  said  Charles  C.  Miller  with  a  criminal  offence  and  for  his  arrest ; 
and  that  the  said  Henry  Brinker  had  promised  him,  the  said  Henry 
McCord,  8200  for  the  arrest  of  him,  the  said  Charles  C.  Miller." 

1  Part  of  the  opinion,  referring  to  a  question  of  pleading,  is  omitted. 
■■^  Ace.  In  re  Cummins,  16  Col.  451 ;   27  Pac.  887.     And  see  Com.  v.  Henry,  22 
Pa.  253.  — Ed. 


SECT.  III.]  REX  V.   REW.  XGS 

Ami  that  said  Miller,  believing  such  false  representations,  was  in- 
duced to  and  did  deliver  to  McCord  a  gold  watch  and  a  diamond  ring.* 

VvM  CuuiAM.  If  the  prosecutor  parted  with  his  property  upon  the 
rei)resentations  set  forth  in  the  indictment,  it  must  have  been  for  some 
unlawful  purpose,  a  purpose  not  warranted  l)y  law.  There  was  no 
legitimate  purpose  to  be  attained  by  delivering  the  goods  to  the  accused 
upon  the  statements  made  and  alleged  as  an  inducement  to  the  act. 
"What  action  by  the  plaintiff  in  error  was  promised  or  expected  in 
return  for  the  property  given  is  not  disclosed.  lUit  whatever  it  was,  it 
was  necessarily  inconsistent  with  his  duties  as  an  olllcer  having  a  crimi- 
nal warrant  for  the  arrest  of  the  prosecutor,  which  was  the  character 
he  assumed.  The  false  representation  of  the  accused  was  that  he  was 
an  officer  and  had  a  criminal  warrant  for  the  prosecutor.  There  was 
no  pretence  of  any  agency  for  or  connection  with  any  person  or  of  any 
authority  to  do  any  act  save  such  as  his  duty  as  such  pretended  officer 
demanded. 

The  prosecutor  parted  with  his  property  as  an  inducement  to  a  sup- 
posed officer  to  violate  the  law  and  his  duties  ;  and  if  in  attempting  to 
do  this  he  has  been  defrauded,  the  law  will  not  punish  his  confederate, 
although  such  confederate  may  have  been  instrumental  in  inducing  the 
commission  of  the  offence.  Neither  the  law  or  public  policy  designs 
the  protection  of  rogues  in  their  dealings  with  each  other,  or  to  insure 
fair  dealing  and  truthfulness  as  between  each  other  in  their  dishonest 
practices.  The  design  of  the  law  is  to  protect  those  who,  for  some 
honest  purpose,  are  induced  upon  false  and  fraudulent  representations 
to  give  credit  or  part  with  their  property  to  another,  and  not  to  protect 
those  who  for  unworthy  or  illegal  purposes  part  with  their  goods.  Peo- 
ple V.  Williams,  4  Hill,  9  ;  Same  v.  Stetson,  4  Barb.  151. 

The  judgment  of  the  Supreme  Court  and  of  the  Sessions  must  be 
reversed  and  judgment  for  the  defendant.^ 


SECTION   III.   {continued.) 

(e)  CONTRIBCTORY  NEGLIGENCE. 

REX  V.  REW. 
Newgate  Sessions.     1662. 

[Reported  Kelyng,  26.] 

Edward  Rew  was  indicted  for  killing  Nathaniel  Rew,  his  brother, 
and  upon  the  evidence  it  was  resolved  that  if  one  gives  wounds  to 

1  Arguments  of  counsel  and  the  dissenting  opinion  of  Peckham,  J.,  are  omitted. 
»  Ace.  State  v.  Crowley,  41  Wis.  271.  —  Ed. 


164  KEGIXA   V.   HOLLAND.  [CHAP.  V. 

another,  who  neglects  the  cure  of  them,  or  is  disorderly,  and  doth  not 
keep  the  rule  which  a  person  wounded  should  do ;  jet  if  he  die  it  is 
murder  or  manslaughter,  according  as  tlie  case  is  in  the  person  who 
gave  the  wounds,  because  if  the  wounds  had  not  been,  the  man  had  not 
died  ;  and  therefore  neglect  or  disorder  in  the  person  who  received  the 
wounds  shall  not  excuse  the  person  who  gave  them. 


REGINA  V.  HOLLAND. 

Liverpool  Assizes.     1841. 

l^Reporltd  2  Moody  ^  Robinson,  35 L] 

Indictment  for  murder.  The  prisoner  was  charged  with  inflicting 
divers  mortal  blows  and  wounds  upon  one  Thomas  Garland,  and  (among 
others)  a  cut  upon  one  of  his  fingers. 

It  appeared  b}'  the  evidence  that  the  deceased  had  been  waylaid  and 
assaulted  by  the  prisoner,  and  that,  among  other  wounds,  he  was 
severely  cut  across  one  of  his  fingers  by  an  iron  instrument.  On  being 
brought  to  the  infirmary,  the  surgeon  urged  him  to  submit  to  the  ampu- 
tation of  the  finger,  telling  him,  unless  it  were  amputated,  he  considered 
that  his  life  would  be  in  great  hazard.  The  deceased  refused  to  allow 
the  finger  to  be  amputated.  It  was  thereupon  dressed  by  the  surgeon, 
and  the  deceased  attended  at  the  infirmary  from  day  to  day  to  have  his 
wounds  dressed  ;  at  the  end  of  a  fortnight,  however,  lock-jaw  came  on, 
induced  by  the  wound  on  the  finger ;  the  finger  was  then  amputated, 
but  too  late,  and  the  lock-jaw  ultimately  caused  death.  The  surgeon 
deposed  that  if  the  finger  had  been  amputated  in  the  first  instance,  he 
thought  it  most  probable  that  tlie  life  of  the  deceased  would  have  been 
preserved. 

For  the  prisoner,  it  was  contended  that  the  cause  of  death  was 
not  the  wound  inflicted  by  the  prisoner,  but  the  obstinate  refusal  of  the 
deceased  to  submit  to  proper  surgical  treatment,  by  which  the  fatal 
result  would,  according  to  the  evidence,  have  been  prevented. 

Maule,  J.,  however,  was  clearly  of  opinion  that  this  was  no  defence, 
and  told  the  jury  that  if  the  prisoner  wilfully,  and  without  any  justifi- 
able cause,  inflicted  the  wound  on  the  party,  which  wound  was  ulti- 
matel}'  the  cause  of  death,  the  prisoner  was  guilty  of  murder ;  that  for 
this  purpose  it  made  no  diflference  whether  the  wound  was  in  its  own 
nature  instantly  mortal,  or  whether  it  became  the  cause  of  death  by 
reason  of  the  deceased  not  having  adopted  tlie  best  mode  of  treatment ; 
the  real  question  is  whether  in  the  end  the  wound  inflicted  by  the  pris- 
oner was  the  cause  of  death.  Guilty} 

1  Ace.  Com.  V.  Hackett,  2  AU.  136.  —Ed. 


SECT.  III.]  REGINA   V.   HEW.  165 

REG  IN  A  V.  DALLOWAY. 

Staffokd  Assizes.     1847. 

[Ri'lMrtcd  2  Cux  V.  C.  273.] 

The  prisoner  was  indicted  fur  the  manslaughter  of  one  Henry  Clarke, 
by  reason  of  his  negligence  as  driver  of  a  cart. 

It  appeared  that  the  prisoner  was  standing  up  in  a  spring-cart, 
and  having  the  conduct  of  it  along  a  public  thorouglifare.  The  cart 
was  drawn  by  one  horse.  The  reins  were  not  in  the  hands  of  the 
prisoner,  but  loose  on  tlie  horse's  back.     While  the  cart  was  so  pro- 


...^. .      }f^^- 

ceeding  down  the  slope  of  a  hill,  the  horse  trotting  at  the  time,  the  \  ^^^ 

deceased  child,  who  was  about  three  years  of  age,  ran  across  the  road     jj 

before  the  horse,  at  the  distance  of  a  few  yards,  and  one  of  the  wheels  of       \}  ' 

the  cart  knocking  it  down  and  passing  over  it  caused  its  death.     It      "^-^''"^       ^ 

did  not  appear  that  the  prisoner  saw  the  child  in  the  road  l)efore  the 

accident. 

Spooner,  for  the  prosecution,  submitted  that  the  prisoner,  in  conse- 
quence of  his  negligence  in  not  using  reins,  was  responsible  for  the 
death  of  the  child  ;  but 

Ehle,  J.,  in  summing  up  to  the  jury,  directed  them  that  a  party 
neglecting  ordinary  caution,  and,  by  reason  of  that  neglect,  causing  the 
death  of  another,  is  guilty  of  manslaughter ;  that  if  the  prisoner  had 
reins,  and  by  using  the  reins  could  have  saved  the  child,  he  was  guilty 
of  manslaughter  ;  but  that  if  they  thought  he  could  not  have  saved  the 
child  by  pulling  the  reins,  or  otherwise  by  their  assistance,  they  must 
acquit  liim. 

The  jury  acquitted  the  prisoner. 


REGINA  V.  KEW. 
Suffolk  Assizes.     1872. 

[Reported  12  Cox  C.  C.  355.] 

The  prisoners  were  indicted  for  manslaughter.  It  appeared  that  on 
the  2d  of  June  the  prisoner,  Jackson,  who  was  in  the  employ  of  Mr. 
Harris,  a  farmer,  was  instructed  to  take  his  master's  horse  and  cart 
and  drive  the  prisoner  Kew  to  the  Bungay  railway  station.  Boing  late 
for  the  train,  Jackson  was  driving  at  a  furious  rate,  at  full  gallop,  and 
ran  over  a  child  going  to  school  and  killed  it.  It  was  about  two  o'clock 
in  the  afternoon,  and  there  were  four  or  five  little  children  from  five  to 
seven  years  of  age  going  to  school  unattended  bv  any  adult. 

Metcalfe  and  Simms  Reeve,  for  the  prisoners,  contended  that  there 
was  contributory  negligence  on  behalf  of  the  child  running  on  the  road. 


166  REX   V.    RICHARDSON.  [CHAP.  V 

and  that  Kew  was  not  liable  for  the  acts  of  another  man's  servant,  he 
having  no  control  over  the  horse  and  not  having  selected  either  the 
horse  or  the  driver. 

BvLES,  J.,  after  reading  the  evidence,  said :  Here  the  mother  lets  her 
/  child  go  out  in  the  care  of  another  child  only  seven  years  of  age,  and 

\  the  prisoner  Kew  is  in  the  vehicle  of  another  man,  driven  by  anotiier 

man's  servant,  so  not  onlj'  was  Jackson  not  his  servant  but  he  did  not 
even  select  him.    It  has  been  contended  if  there  was  contributory  negli- 
'  I  gence  on  the  children's  part,  then  the  defendants  are  not  liable.     No 

doubt  contributor}-  negligence  would  be  an  answer  to  a  civil  action. 
But  who  is  the  plaiutilf  here?     The  Queen,  as  representing  the  nation  ; 
^  and  if  the}-  were  all  negligent  together  I  think  their  negligence  would 

be  no  defence,  even  if  they  had  been  adults.  If  the^'  were  of  opinion 
that  the  prisoners  were  driving  at  a  dangerous  pace  in  a  culpabl}-  negli- 
gent manner,  then  they  are  guilt}'.  It  was  true  that  Kew  was  not 
actuall}'  driving,  but  still  a  word  from  him  might  have  prevented  the 
accident.  If  necessary  he  would  reserve  the  question  of  contributory 
negligence  as  a  defence  for  the  Court  of  Criminal  Appeal. 
The  jury  acquitted  both  prisoners.^ 


SECTION  IV. 

Contributing  Acts. 

REX  V.   RICHARDSON. 
Old  Bailey.     1785. 

[Reported  Leach  (4th  ed.)  387.] 

At  the  Old  Bailey,  in  .June  Session  1785,  Daniel  Richardson  and 
Samuel  Greenow  were  indicted  before  Mr.  Justice  Bullek  for  a  high- 
wa}'  robbery  on  John  Billings. 

It  appeared  in  evidence  that  the  two  prisoners  accosted  the  prose- 
cutor as  he  was  walking  along  the  street,  b}^  asking  him  in  a  peremp- 
tory manner  what  monc}'  he  had  in  his  pocket ;  that  upon  his  replying 
that  he  had  only  two-pence  half-penny  one  of  the  prisoners  immedi- 
ately said  to  the  other,  "  If  he  reall}'  has  no  more  do  not  take  that," 
and  turned  as  if  with  an  intention  to  go  away ;  but  the  other  prisoner 
stopped  the  prosecutor,  and  robbed  him  of  the  two-pence  half-penny, 
which  was  all  the  monev  he  had  about  him.  But  the  prosecutor  could 
not  ascertain  which  of  them  it  was  that  had  used  this  expression,  nor 
which  of  them  had  taken  the  half-pence  from  his  pocket. 

1  Ace.  Reg.  V.  Longbottom,  3  Cox  C.  C.  439  ;  Belk  v.  People,  125  111.  584  ;  Cium 
V.  State,  64  Miss.  1,  1  So.  1.     But  see  Reg.  v.  Birchall,  4  F.  &  F.  1087.  —Ed.    ' 


SECT.  IV.]  REGINA   V.   SWINDALL.  167 

The  Coukt.  The  point  of  law  goes  to  the  acquittal  of  both  the 
prisoners ;  for  if  two  men  assault  another  with  intent  to  rob  him,  and 
one  of  them,  before  any  demand  of  money,  or  offer  to  take  it  be  made, 
repent  of  what  he  is  doing,  and  desist  from  the  proseculion  of  such 
intent,  he  cannot  be  involved  in  the  guilt  of  his  companion  who  after- 
wards takes  the  money  ;  for  he  changed  his  evil  intention  before  the 
act  which  completes  the  offence  was  committed.  That  prisoner  there- 
fore, whichever  of  the  two  it  was  who  thus  desisted,  cannot  be  guilty 
of  the  present  charge  ;  and  the  i)rosecutor  cannot  ascertain  who  it  was 
that  took  the  property.  One  of  them  is  certainly  guilty,  but  which  of 
them  personally  does  not  appear.  It  is  like  the  Ipswich  Case,  where 
five  men  were  indicted  for  murder;  and  it  appeared,  on  a  S))ecial  ver- 
dict, that  it  w^as  murder  in  one,  but  not  in  the  other  four  ;  but  it  did 
not  appear  which  of  the  five  had  given  the  blow  which  caused  the 
death,  and  the  court  thereupon  said  that,  as  the  man  could  not  be 
clearly  and  positively  ascertained,  all  of  them  must  be  discharged. 

The  two  prisoners  were  accordingly  acquitted.^ 


REGINA  V.    SWINDALL. 
Stafford  Assizes.     1846. 

[/Reported  2  Carrim/ton  ij-  Kirwan,  230.] 

Manslaughter.  —  The  prisoners  were  indicted  for  the  manslaughter 
of  one  James  Durose.  The  second  count  of  the  indictment  charged 
the  pri.soners  with  inciting  each  other  to  drive  their  carts  and  horses 
at  a  furious  and  dangei-ous  rate  along  a  public  road,  and  with  driving 
their  carts  and  horses  over  the  deceased  at  such  furious  and  dangerous 
rate,  and  thereby  killing  him.  The  third  count  charged  Swindall  with 
driving  his  cart  over  the  deceased,  and  Osborne  with  being  present, 
aiding  and  assisting.  The  fourth  count  charged  Osborne  with  driving 
his  cart  over  the  deceased,  and  Swindall  with  being  present,  aiding 
and  assisting. 

Upon  the  evidence  it  appeared  that  the  prisoners  were  each  driving 
a  cart  and  horse,  on  the  evening  of  the  r2th  of  August,  18-45.  The 
first  time  the}-  were  seen  that  evening  was  at  Draycott  toll-gate,  two 
miles  and  a  half  from  the  place  where  the  deceased  was  run  over. 
Swindall  there  paid  the  toll,  not  only  for  that  night,  but  also  for 
having  passed  with  Osborne  through  the  same  gate  a  day  or  two 
before.  The}*  then  appeared  to  be  intoxicated.  The  next  place  at 
which  they  were  seen  was  Tean  Bridge,  over  which  they  passed  at  a 
gallop,  the  one  cart  close  behind  the  other.  A  person  tlicre  told  tliem 
to  mind  their  driving ;  this  was  yjO  yards  from  tlie  place  where  the 

1  Ace.  People  v.  Moody,  45  Cal.  289.  -  Eu. 


1G8  BEGIN  A    V.    SWIXDALL.  [_CHAP.  V. 

deceased  was  killed.  The  next  place  where  thej'  were  seen  was  forty- 
seven  yards  beyond  the  place  where  the  deceased  was  killed.  The 
carts  were  then  going  at  a  quick  trot,  one  closely  following  the 
other.  At  a  turnpike-gate  a  quarter  of  a  mile  from  the  place  where 
the  deceased  was  killed,  Swindall,  who  appeared  all  along  to  have 
been  driving  the  first  cart,  told  the  toll-gate  keeper,  "  We  have  driven 
over  an  old  man,"  and  desired  him  to  bring  a  light  and  look  at  the 
name  on  the  cart ;  on  which  Osborne  pushed  on  his  cart,  and  told 
Swindall  to  hold  his  bother,  and  they  then  started  off  at  a  quick  pace. 
They  were  subsequently  seen  at  two  other  places,  at  one  of  which 
Swindall  said  he  had  sold  his  concern  to  Osborne.  It  appeared  that 
the  carts  were  loaded  with  pots  from  the  potteries.  The  surgeon 
proved  that  the  deceased  had  a  mark  upon  his  body  which  would  cor- 
respond with  the  wheel  of  a  cart,  and  also  several  other  bruises,  and, 
although  he  could  not  say  that  both  carts  had  passed  over  his  body,  it 
was  possible  that  both  might  have  done  so. 

Greaves,  in  opening  the  case  to  the  jury,  had  submitted  that  it  was 
perfectly  immaterial  in  point  of  law,  whether  one  or  both  carts  had 
passed  over  the  deceased.  The  prisoners  were  in  company,  and  had 
concurred  in  jointly  driving  furiously  along  the  road ;  that  that  was 
an  unlawful  act,  and,  as  both  had  joined  in  it,  each  was  responsible 
for  the  consequences,  though  they  might  arise  from  the  act  of  the 
other.  It  was  clear  that  they  were  either  partners,  master  and  ser- 
vant, or  at  all  events  companions.  If  they  had  been  in  the  same  cart, 
one  holding  the  reins,  the  other  the  whip,  it  could  not  be  doubted  that 
they  would  be  both  liable  for  the  consequences ;  and  in  effect  the  case 
was  the  same,  for  each  was  driving  his  own  horse  at  a  furious  pace, 
and  encouraging  the  other  to  do  the  like. 

At  the  close  of  the  evidence  for  the  prosecution,  AUeti,  Serjt.,  for 
the  prisoners,  submitted  that  the  evidence  only  proved  that  one  of 
the  prisoners  had  run  over  the  deceased,  and  that  the  other  was  en- 
titled to  be  acquitted. 

Pollock,  C.  B.  I  think  that  that  is  not  so.  I  think  that  Mr. 
Greaves  is  right  in  his  law.  If  two  persons  are  in  this  way  inciting 
each  other  to  do  an  unlawful  act,  and  one  of  them  runs  over  a  man, 
whether  he  be  the  first  or  the  last  he  is  equally  liable :  the  person  who 
runs  over  the  man  would  be  a  principal  in  the  first  degree,  and  the 
other  a  principal  in  the  second  degree. 

Allen,  Serjt.  The  prosecutor,  at  all  events,  is  bound  to  elect  upon 
which  count  he  will  proceed. 

Pollock,  C.  B.  That  is  not  so.  I  very  well  recollect  that  in 
Regina  v.  Goode  there  were  many  modes  of  death  specified,  and  that 
it  was  also  alleged  that  the  deceased  was  killed  by  certain  means  to 
the  jurors  unkuown.  When  there  is  no  evidence  applicable  to  a  i)ar- 
ticuiar  count,  that  count  must  be  abandoned ;  but  if  there  is  evidence 
to  support  a  count,  it  must  be  submitted  to  the  jury.  In  this  case  the 
evidence  goes  to  support  all  the  counts. 


SFXT.  IV.]  REGINA   V.    SWINDALL.  1C9 

Allen,  Scrjt,  addressed  the  jury  fur  the  prisoners. 

Pollock,  C.  B.,  in  summing  up.  The  pri.soners  arc  cliargcd  with 
contributing  to  the  dealii  of  the  deceased  l»y  their  negligence  and 
improper  conduct,  and,  if  they  did  so,  it  matters  not  whether  he  was 
deaf,  or  drunk,  or  negligent,  or  in  i)art  contributed  to  his  own  death  ; 
for  in  this  consists  a  great  distinction  between  civil  and  criminal  pro- 
ceetlings.  If  two  coaches  run  against  each  other,  and  the  drivers  of 
both  arc  to  blame,  neither  of  them  has  any  remedy  against  the  other 
for  damages.  So,  in  order  that  one  ship-owner  may  recover  against 
another  for  any  damage  done,  he  must  be  free  from  blame  ;  he  cannot 
recover  from  the  other  if  he  has  contributed  to  his  own  injur}-,  however 
slight  the  contribution  may  be.  But  in  the  case  of  loss  of  life  the 
law  takes  a  totally  ditrerent  view,  —  the  converse  of  that  proposition  is 
true ;  for  there  each  party  is  responsible  for  any  blame  that  may 
ensue,  however  large  the  share  may  be ;  and  so  highly  does  the  law 
value  human  life  that  it  admits  of  no  justification  wherever  life  has 
been  lost,  and  the  carelessness  or  negligence  of  any  one  person  has 
contributed  to  the  death  of  another  person.  Generally,  it  may  be  laid 
down  tliat  where  one  by  his  negligence  has  contributed  to  the  death 
of  another  he  is  responsible ;  therefore,  you  are  to  say,  by  your  ver- 
dict, whether  3'ou  are  of  opinion  that  the  deceased  came  to  his  death 
in  consequence  of  the  negligence  of  one  or  both  of  the  prisoners. 
A  distinction  has  been  taken  between  the  prisoners  :  it  is  said  that 
the  one  who  went  first  is  responsible,  but  that  the  second  is  not. 
If  it  is  necessary  that  both  should  have  run  over  the  deceased,  the 
case  is  not  without  evidence  that  both  did  so.  But  it  appears  to 
me  that  the  law,  as  stated  b}^  Mr.  Greaves,  is  perfectly  correct. 
Where  two  coaches,  totally  independent  of  each  other,  arc  proceeding  in 
the  ordinary  waj-  along  a  road,  one  after  the  other,  and  the  driver  of  the 
first  is  guilty  of  negligence,  the  driver  of  the  second,  who  had  not  the 
same  means  of  pulling  np,  may  not  be  responsible.  But  when  two 
persons  are  driving  together,  encouraging  each  other  to  drive  at  a 
dangerous  pace,  then,  whether  the  injury  is  done  In-  the  one  driving 
the  first  or  the  second  carriage,  I  am  of  opinion  that  in  point  of 
law  the  other  shares  the  guilt.^ 

Verdict,  Quilty. 

Greaves  and  Kynnersley,  for  the  prosecution. 

Allen,  Serjt.,  and  (7.  //.  Whalley,  for  the  prisoners. 

1  See  Reg.  v.  Salmon,  14  Cox  C  C.  494.  —  Ed. 


170  KEGINA   V.    HAINES.  [cHAP.  V. 


REGINA  V.   HAINES. 

"Worcestershire  Assizes.     1847. 

[Reported  2  Carringlon  Sj'  Kirwan,  368.] 

Manslaughter.  — The  first  count  of  the  indictment  stated  that  the 
prisoner,  in  and  upon  one  James  Shakesjoeare  did  make  an  assault; 
and  that  it  was  the  duty  of  the  prisoner  to  ventilate  and  cause  to  be 
ventilated  a  certain  coal  mine,  and  to  cause  it  to  be  kept  free  from 
noxious  gases,  and  that  the  prisoner  feloniousl}'  omitted  to  cause  the 
mine  to  be  kept  ventilated,  and  that  the  noxious  gases  accumulated 
and  exploded,  whereby  the  said  J.  S.,  who  was  lawfull}'  in  the  said 
mine,  was  killed. 

It  appeared  that  a  mine,  called  Round  Green  Collier}',  situate  at 
Hales  Owen,  was  the  property  of  George  Parker,  Esq.,  and  that  the 
prisoner  was  a  sort  of  manager  of  it,  and  called  the  ground  bailiff; 
that  another  person  was  under  him,  called  the  butty,  he  being  a  sort 
of  foreman,  and  that  the  deceased,  who  was  called  the  doggy,  was  a 
kind  of  second  foreman  under  the  butt}". 

It  further  appeared,  that,  at  about  half-past  six  o'clock  on  the  morn- 
ing of  the  17th  of  November,  1846,  a  number  of  men  were  working  in 
a  large  chamber  in  the  collieiy,  when  there  was  an  explosion  of  fire- 
damp, b}-  which  nineteen  persons,  including  the  deceased  James 
vShakespeare,  were  killed  ;  and  it  was  imputed,  on  the  part  of  the 
prosecution,  that  this  explosion  would  have  been  prevented  if  the 
prisoner  had  caused  an  air-heading  to  have  been  put  up,  as  it  was  his 
duty  to  have  done.  But  it  was  sought  to  be  shown  by  the  cross-ex- 
amination of  the  witnesses  for  the  prosecution,  that  it  was  the  duty  of 
the  butt}-  (who  was  one  of  the  persons  killed  by  the  explosion)  to  have 
reported  to  the  prisoner  as  ground  bailiff  that  an  air-heading  was 
required  ;  and  that,  as  far  as  appeared,  he  had  not  done  so. 

Allen,  Serjt.,  for  the  prisoner,  submitted,  first,  that  the  prisoner  was 
not  guilty  of  any  negligence  at  all,  as  it  was  only  his  duty  to  cause  air- 
headings  to  be  put  up  on  the  requisition  of  the  butty ;  and,  secondly, 
that  a  person  who  was  guilty  only  of  breach  of  duty  by  omission, 
could  not  be  found  guilty  of  manslaughter ;  for  that,  in  order  to  con- 
stitute that  offence,  there  must  be  some  wrongful  or  improper  act  done 
by  the  prisoner,  except  in  those  cases  where  there  was  a  liability 
known  to  the  law,  such  as  providing  an  infant  with  food,  or  the  like. 
He  cited  the  case  of  Regina  v.  Allen. 

Maule,  J.  (in  summing  up).  The  prisoner  is  charged  with  man- 
slaughter, and  it  is  imputed  that,  in  consequence  of  his  omission  to 
do  his  duty,  a  person  named  Shakespeare  lost  his  life.  It  appears 
that  the  prisoner  acted  as  ground  bailiff  of  a  mine,  and  that,  as  such, 
his  duty  was  to  regulate  the  ventilation,  and  direct  where  air- headings 
should  be  placed ;  and  the  questions  for  you  to  consider  are,  whether 


fiECT.  IV.]  REGINA   V.   DAVIS.  171 

It  was  the  duty  of  the  prisoner  to  have  directed  an  air-heading  to  be 
made  in  this  mine;  and  whether,  by  his  omitting  to  do  so,  he  was 
guilty  of  a  want  of  reasonable  and  ordinary-  precaution.  If  you  are 
satisfied  that  it  was  the  ordinary  and  plain  duty  of  the  prisoner  to 
have  caused  an  air-heading  to  be  made  in  this  mine,  and  that  a  man 
using  reasonable  diligence  would  have  had  it  done,  and  that,  b}*  the 
omission,  the  dcatii  of  the  deceased  occurred,  you  ought  to  find  the 
prisoner  guilty  of  manslaughter.  It  has  been  contended  that  some 
other  persons  were,  on  this  occasion,  also  guilty  of  neglect.  Still, 
assuming  that  to  be  so,  their  neglect  will  not  excuse  the  prisoner ;  for, 
if  a  person's  death  be  occasioned  by  the  neglect  of  several,  they  are 
all  guilty  of  manslaughter  ;  and  it  is  uo  defence  for  one  who  was  neg- 
ligent to  say  that  another  was  negligent  also,  and  thus,  as  ifwere,  try 
to  divide  the  negligence  among  them. 

Verdict,  Not  guilty. 

Iluddleston  and  Hooper,  for  the  prosecution. 

Allen,  Serjt.,  and  IVhitmore,  for  the  prisoner. 


REGINA  V.  DAVIS. 
Hertfordshire  Assizes.    1883. 

[Reported  1.5  Cox  C.  C.  174.] 

The  prisoners,  George  Davis  and  Charles  Wagstaffc,  were  indicted 
for  the  manslaughter  of  James  Butterworth,  at  Chipping  Barnet. 

Fulton  and  Beard  were  counsel  for  the  prosecution. 

Sims  was  counsel  for  Davis,  and  Montagu  Williams  and  F.  Turner 
for  Wagstaffe. 

From  the  evidence  it  appeared  that  about  10.30  o'clock  on  the  eve- 
ning of  the  5th  day  of  September,  1882,  the  deceased  man  Butterworth 
with  some  friends  were  passing  the  shop  of  Davis,  a  greengrocer,  in 
High  Street,  Barnet.  He  went  into  the  shop  and  asked  Mrs.  Davis  to 
serve  him  with  an  apple.  Mrs.  Davis  for  some  reason  refused,  and  he 
thereupon  used  disgusting  language  to  her. 

A  few  minutes  afterwards  her  husband,  the  prisoner  Davis,  came  up  ; 
abusive  words  then  followed,  and  a  fight  ensued  between  Davis  and 
Butterworth,  and  the  latter  was  knocked  over  some  baskets  outside  the 
shop.  Then  Marsliall,  one  of  Butterworth's  friends,  interfered,  wlio, 
being  struck  by  the  defendant  Wagstaffe  (a  friend  of  Davis),  ran  away, 
followed  by  Wagstaffe.  Wagstaffe  then  returned  just  as  Butterworth 
was  getting  up  from  the  ground.  Wagstaffe  at  once  knocked  Butter- 
worth down  again,  and  Butterworth  then  called  out  that  "he  has  broken 
my  jaw." 


^ 


cAa-U    Oi 


0 


172  REGINA   V.   DAVIS.  [CHAP.  V. 

On  examination  it  was  found  that  Butterworth's  jaw  was  broken  in 
two  places,  and  the  following  da}'^  he  went  to  St.  Bartholomew's  Hospi- 
tal, and  the  surgeon  in  charge  decided  that  it  would  be  necessary  to 
wire  his  jaw,  and  the  assistant  chloroformist  was  sent  for,  and  the 
chloroform  properly  applied  ;  but  death,  unfortunately,  took  place  under 
the  operation. 

T\\Q post-mortem  examination  disclosed  a  serious  injur}'  to  the  trachea, 
as  well  as  tubercular  disease  of  both  lungs,  the  injur}'  to  the  trachea 
being  the  result  of  a  blow  received  during  the  fight.^ 

The  prisoner's  counsel  proposed  to  show  b}'  evidence  that  the  opinion 
formed  by  the  medical  men  was  grounded  upon  erroneous  premises,  and 
that  no  operation  was  necessar}'  at  all,  or  at  least  that  an  easier  and 
much  less  dangerous  operation  might  and  ought  to  have  been  adopted, 
and  contended  that  he  might  thei*efore  cross-examine  the  medical  wit- 
nesses for  the  prosecution  as  to  the  grounds  of  their  opinion  ;  and  he 
submitted  that  a  person  was  not  criminally  responsible  where  the  death 
is  caused  by  consequences  which  are  not  physicalh'  the  consequences 
of  the  wound,  but  can  only  be  connected  with  the  first  wound  b}'  moral 
reasoning ;  as  where  that  which  occasioned  death  was  the  operation 
which  supervened  upon  the  wound,  because  the  medical  men  thought  it 
necessary. 

Williams.  I  propose  to  call  medical  evidence  that  the  death  was 
caused  b}'  the  administration  of  the  chloroform. 

His  Lordship  [Mathew,  J.].  It  is  not  disputed  that  if  the  chloroform 
had  not  been  administered  the  man  would  not  have  died. 

His  Lordship  then  consulted  Mr.  Justice  Field,  and  said  :  "  I  have 
no  doubt  at  all  upon  the  matter,  nor  has  ni}'  brother  Field,  whom  I 
have  consulted  ;  and  we  think,  whatever  maj'  have  been  the  case  in 
1846,  the  law  is  now  too  clear  to  reserve  a  case  for  the  consideration 
of  the  judges,  and  that  if  the  jury  are  satisfied  that  the  injury  to  the 
jaw  was  inflicted  by  "VVagstaflTe,  and  that  Davis  aided  and  abetted  him, 
then  they  must  find  them  both  guilty ;  and,  on  the  other  hand,  if  they 
think  there  is  no  sufficient  evidence  of  concert,  still  they  must  find  them 
both  guilty  if  they  think  Wagstaffe  broke  the  jaw,  and  Davis  inflicted 
the  injury  to  the  trachea.  We  both  think  that  the  chloroform  having 
been  properly  administered  by  a  regular  medical  practitioner,  the  fact 
that  death  primarily  resulted  from  its  use  cannot  affect  the  criminal 
responsibility  of  the  accused  persons.  Of  course,  if  the  jur}'  think  there 
was  a  melee,  and  that  there  is  no  reliable  evidence  of  concert,  and  the}' 
cannot  say  which  of  the  two  prisoners  inflicted  either  the  injury  to  the 
jaw  or  the  injury  to  the  trachea,  then  they  may  if  they  please  acquit 
them  both." 

The  learned  counsel  for  the  prisoners  then  addressed  the  jury. 

His  Lordship  (in  summing  up  the  case  to  the  jury).  It  might  appear 
that  the  death  was  not  due  to  any  act  of  either  prisoner,  but  to  some- 

1  The  statement  of  facts  and  arguments  of  counsel  have  been  condensed. 


SECT.  IV.]  BEGIN  A   V.   DAVIS.  173 

thing  of  which  at  first  sight  they  were  not  guilty  ;  and  that  their  moral 
guilt  really  went  no  farther  than  the  guilt  of  a  man  who  coiumittud  an 
assault.  The  prosecution  did  not  say  that  there  was  anything  more 
than  a  street  fight ;  tlu;  injuries  were  serious,  hut  perhaps  no  more  so 
than  where  it  happened  that  no  death  ensued,  and  the  man  who  had 
broken  the  peace  was  liable.  However,  the  case  was  to  be  dealt  with 
according  to  the  strict  rule  of  law,  which  was  that,  if,  although  there 
might  be  no  intent  to  do  niore  than  assault,  still  an  injury  was  inflicted 
by  one  man  on  another  which  compelled  the  injured  man  to  take  medi- 
cal advice,  and  death  ensued  from  an  operation  advised  by  the  medical 
man,  for  that  death  the  assailant  was  in  the  eye  of  the  law  responsible. 
And  if  the  jury  were  satisfied  that  both  or  either  of  the  men  were 
responsible  for  the  injury  to  the  deceased,  and  that  Butterworth  took 
the  proper  course  of  consulting  competent  medical  men  ;  that  they 
recommended  an  operation  for  the  purpose  of  which  chloroform  was 
administered,  and  he  died  from  that  chloroform,  death  nuist  be  traced 
back  to  the  act  of  the  man  b}'  whom  the  original  injur}-  was  done  to 
Butterworth.  They  would  deal  with  the  evidence  on  that  principle,  and 
whatever  the  consequences  might  be  they  would  have  to  pronounce  their 
verdict  on  that  footing.  [His  Lordship  then  went  through  and  com- 
mented upon  the  evidence,  and  proceeded:]  The  first  question  was. 
Was  it  Wagstatfe  who  injured  the  man's  jaw?  If  Wagstaflfe  struck  the 
blow  that  injured  the  man's  jaw,  or  wl>ether  it  was  done  when,  as  some 
of  the  witnesses  said,  Wagstatfe  kicked  him,  then  it  was  their  duty 
to  say  Wagstatfe  was  guilty.  There  was  evidence  that  the  blow  that 
injiu-ed  the  jaw  injured  the  trachea.  That  injury  to  the  jaw  caused 
resorting  to  the  hospital ;  competent  medical  men  decided  to  perform 
an  operation;  that  rendered  chloroform  necessaiy  ;  and  if  under  chloro- 
form the  man  died,  the  rule  of  law  was  that  the  death  could  be  traced 
back  to  the  man  by  whom  the  injury  was  done.  For  it  would  never  do 
to  have  a  serious  injurj^  by  one  man  on  another,  and  have  the  issue 
raised  that  death  was  due  to  want  of  skill  on  the  part  of  the  medical 
men.  People  who  inflicted  injuries  must  deal  with  the  law.  If  the  jury 
thought  there  was  a  melee,  and  that  the  injury  was  not  clearly  brought 
home  to  Wagstaffe,  the}'  were  at  liberty  to  say  the  Crown  had  not 
brought  home  to  him  the  death  of  the  man.  If  the}'  were  satisfied 
Davis  had  nothing  to  do  with  the  injury,  and  he  thought  there  could 
be  no  doubt  about  that,  and  if  they  believed  it  was  brought  home  to 
Wagstalfe,  it  would  be  their  duty  to  acquit  Davis  and  say  Wagstatfe 
was  guilty. 
The  jury  acquitted  the  prisoners.  Not  guilty. 


174  REX   V.   SHEPPARD.  [CHAP.  VL 

CHAPTER  YI. 
THE   CRIMINAL   INTENT. 


SECTION   I. 

Intent  distinguished  from  motive. 

REX  V.    SHEPPARD. 
CRO^^^^  Case  Reserved.     1810. 

[Reported  Russell  <^-  Ryan,  169.] 

The  prisoner  -was  tried  before  Mr.  Justice  Heath,  at  the  Old  Bailey 
September  sessions,  in  the  year  1809,  on  an  indictment  consisting  of 
four  counts. 

The  first  count  charged  the  prisoner  with  forging  a  receipt  for 
£19  16s.  6f?.,  purposing  to  be  signed  by  W.  S.  West,  for  certain  stock 
therein  mentioned,  with  intent  to  defraud  the  governors  and  company 
of  the  Bank  of  England.  The  second  count  was  for  uttering  the  same 
knowing  it  to  be  forged,  with  the  like  intent.  The  third  and  fourth 
counts  varied  from  the  first  and  second  in  charging  the  intent  to  have 
been  to  defraud  Richard  Mordey. 

It  appeared  in  evidence  at  the  trial  that  Richard  Mordey  gave  £20 
to  his  brother,  Thomas  Mordey,  in  the  month  of  January,  1809,  to 
buy  stock  in  the  five  per  cent  Navy. 

In  February  following  Thomas  Mordey  gave  the  £20  to  the  prisoner 
for  the  purchase  of  the  said  stock,  on  the  prisoner's  delivering  to  him 
the  receipt  stated  in  the  indictment. 

The  prisoner  being  examined  at  the  bank,  confessed  that  the  receipt 
was  a  forgery,  that  there  was  no  such  person  as  W.  S.  West,  whose 
signature  appeared  subscribed  to  the  receipt,  and  that  he,  being 
pressed  for  money,  forged  that  name,  but  had  no  intention  of  defraud- 
ing Richard  Mordey. 

Richard  Mordey  and  Thomas  Mordey  swore  they  believed  that  the 
prisoner  had  no  such  intent. 

On  examining  the  bank  books,  no  transaction  corresponding  with 
this  could  be  found. 

The  learned  judge  told  the  jury  that  the  prisoner  was  entitled  to  an 
acquittal  on  the  first  and  second  counts,  because  the  receipt  in  ques- 
tion could  not  operate  in  fraud  of  the  governor  and  company  of  the 
bank. 


SECT.  I.]  REGINA   V.   SHARPE.  175 

That  as  to  the  thirtl  and  fourth  counts,  although  the  IMonleys 
swore  that  they  did  not  believe  the  forgery  to  have  been  committed 
with  an  intent  to  defraud  Richard  Mordey ;  yet,  as  it  was  the  neces- 
sary effect  and  consequence  of  the  forgery,  if  the  prisoner  could  not 
repay  the  money,  it  was  sullicient  evidence  of  the  intent  for  them  to 
convict  the  prisoner. 

The  jury  acquitted  the  prisoner  on  the  first  and  second  counts,  and 
found  him  guilty  on  the  third  and  fourth  counts  ;  and  the  learned 
judge  reserved  this  case  for  the  opinion  of  the  judges,  to  determine 
whetlier  this  direction  to  the  jury  was  right  and  proper. 

In  Easter  term,  31st  of  May,  1810,  all  the  judges  were  present,  and 
they  were  all  of  opinion  that  the  conviction  was  right,  that  the  imme- 
diate effect  of  the  act  was  the  defrauding  of  Richard  Mordey  of  his 
money. 


REGINA  V.   SHARPE. 
Crown  Case  Reserved.     1857. 

[Reported  7  Cox  C.  C.  214.] 

The  defendant  was  tried  at  Hertford,  before  Erie,  J,,  who  reserved 
the  following  case  :  — 

The  indictment  in  the  first  count  charged  that  the  defendant,  a 
certain  l)urial-ground  belonging  to  a  certain  meeting-house  of  a  con- 
gregation of  Protestants  dissenting  from  the  Church  of  England, 
unlawfully  did  break  and  enter,  and  a  certain  grave  there,  in  which 
the  body  of  one  Louisa  Sharpe,  had  before  then  been  interred,  with 
force  and  arms,  unlawfully,  wilfully,  and  indecently  did  dig  open, 
and  the  said  body  of  the  said  Louisa  Sharpe  out  of  the  said  grave, 
unlawfully,  wilfully,  and  indecently  did  take  and  carry  away. 

And  there  were  other  counts,  varying  the  charge,  which  may  be 
resorted  to  if  necessary.  The  evidence  was,  that^the  defendant's 
family  had  belonged  to  a  congregation  of  dissenters  at  Hitehin,  and 
his  mother,  with  some  other  of  his  relations,  had  been  buried  in  one 
grave  in  the  burying-ground  of  that  congregation  there,  with  the  con- 
sent of  those  who  were  interested.  That  the  father  of  the  defendant 
had  recently  died.  That  the  defendant  prevailed  on  the  wife  of  the 
person  to  whom  the  key  of  the  burying-ground  was  intrusted  to  allow 
him  to  cause  the  grave  above  mentioned  to  be  opened,  under  the  pre- 
text that  he  wished  to  bury  his  father  in  the  same  grave,  and,  in  order 
thereto,  to  examine  whether  the  size  of  the  grave  would  admit  his 
father's  coflin.  That  he  caused  the  coHlns  of  his  stepmother  and  two 
children  to  be  taken  out,  and  so  came  to  the  coffin  of  his  mother, 
which  was  under  them,  and  was  much  decomposed,  and  that  he 
caused  the  remains  of  this  cotlin,  with  the  corpse  therein,  to  be  placed 


176  REGINA   V.    SHARPE.  [CHAP.  VI. 

in  a  shell  and  carried  to  a  cart  near  tbe  burying-ground,  and  driven 
therein  some  miles  away  towards  a  churchyard,  where  he  intended  to 
bury  his  father's  corpse  with  the  remains  of  his  mother. 

These  acts  were  done  without  the  knowledge  or  consent  of  the  con- 
gregation to  whom  the  burying-ground  belonged,  or  of  the  trustees 
having  the  legal  estate  therein.  The  person  having  the  keys  of  the 
ground  was  induced  to  admit  the  defendant  into  the  ground  and  to 
the  grave  by  reason  of  the  pretext  that  the  defendant  intended  to 
bury  his  father  there,  and  the  jury  found  that  this  was  only  a  pretext, 
and  that  his  real  intention  from  the  beginning  was  to  remove  his 
mother's  corpse. 

But  the  defendant  acted  throughout  without  intentional  disrespect 
to  any  one,  being  actuated  by  motives  of  affection  to  his  mother  and 
of  religious  duty.  I  directed  the  jury  to  convict  if  they  believed  these 
facts  to  be  true,  and  reserved  for  the  decision  of  this  court  the  ques- 
tion whether  the  conviction  could  be  sustained.  Accordingly,  a  ver- 
dict of  guilty  was  entered,  and  the  defendant  was  discharged  on  his 
recognizance  to  appear  if  called  on. 

This  case  came  on  for  argument  on  Saturday,  November  15,  before 
Pollock,  C.  B.,  Erie,  J.,  AVilles,  J.,  Bramwell,  B.,  and  Watson,  B. 

The  defendant  in  person  argued  that  the  conviction  was  wrong. 
He  considered  that  the  grave  was  the  private  property  of  his  family ; 
and  there  had  been  no  indecorum  or  improper  motive  in  his  proceed- 
ings. He  alluded  to  the  circumstance  that  the  bodies  of  many  illus- 
trious persons  had,  at  various  times,  been  removed  from  one  place  of 
interment  to  another. 

No  counsel  appeared  for  the  Crown.  Cur.  adv.  vult. 

Erle,  J.,  now  delivered  the  judgment  of  the  court.  We  are  of 
opinion  that  the  conviction  ought  to  be  affii-med.  The  defendant  was 
wrongfully  in  the  burial-ground,  and  wrongfully  opened  the  grave, 
and  took  out  several  corpses  and  carried  away  one.  We  say  he  did 
this  wrongfully,  that  is  to  say,  by  trespass ;  for  the  license  which  he 
obtained  to  enter  and  open  from  the  person  who  had  the  care  of  the 
place  was  not  given  or  intended  for  the  purpose  to  which  he  applied 
it,  and  was,  as  to  that  purpose,  no  license  at  all.  The  evidence  for 
the  prosecution  proved  the  misdemeanor,  unless  there  was  a  defence. 
We  have  considered  the  grounds  relied  on  in  that  behalf,  and  although 
we  all  feel  sensible  of  the  estimable  motives  on  which  the  defendant 
acted,  namely,  filial  affection  and  religious  duty,  still,  neither  autlior- 
ity  nor  principle  would  justify  the  position  that  the  wrongful  removal 
of  a  corpse  was  no  misdemeanor  if  the  motive  for  the  act  deserved 
approbation.  A  purpose  of  anatomical  science  would  fall  within  that 
category.  Neither  does  our  law  recognize  the  riglit  of  any  one  child 
to  the  corpse  of  its  parent,  as  claimed  by  the  defendant.  Our  law 
recognizes  no  property  in  a  corpse,  and  the  protection  of  the  grave  at 
common  law,  as  contradistinguished  from  ecclesiastical  protection  to 
consecrated  ground,  depends  on  this  form  of  indictment,  and  there 


SECT.  I.]  STATE   V.    PR  ESN  ELL.  177 

is  no  authority  for  sayiug  tluit  rclutiousiiip  cuu  justify  the  takiug  of  a 
corpse  from  the  grave  wliere  it  had  beeu  hiid.  Wo  have  been  uuwill- 
iu*'  to  alliriu  the  convictiou  ou  account  of  our  respect  for  the  motives 
of  the  (lefeuilunt ;  but  we  have  felt  it  our  duty  to  do  so  rather  tlian 
lay  down  a  rule  which  miglit  lessen  tlie  only  protection  the  law  affords 
in  respect  of  the  burials  of  dissenters.  The  result  is,  the  conviction 
will  stand,  and,  as  the  judge  states,  the  sentence  should  be  a  nominal 
fine  of  one  shilling.  Conviction  ajinned.^ 


RESPUBLICA  V.  CALDWELL. 

Court  of  Oyer  axd  Terminer,  Philadelphia.     1785. 

[Reported  1  Dallas,  150.] 

This  was  an  indictment  for  a  nuisance,  in  erecting  a  wharf  on  the 
public  property.  The  defendant  olfered  witnesses  to  prove  that  the 
erection  of  the  wharf  has  been  beneficial  to  the  public,  and,  therefore, 
not  to  be  regarded  as  a  nuisance. 

But  M'Kean,  Chief  Justice,  delivered  the  opinion  of  the  court,  that 
the  evidence  was  inadmissible,  for  two  reasons :  Jirst,  because  it  would 
only  amount  to  matter  of  opinion,  whereas  it  is  on  facts  the  court  must 
proceed  ;  and  the  necessary  facts  are  alread}'  in  pi'oof ;  seco7idli/,  because 
it  would  be  no  justification  ;  for,  ou  the  same  principle  that  the  defend- 
ant might  carry  his  wharf  twelve  feet,  he  could  justify  extending  it 
farther  :  or  any  other  man  might  excuse  a  similar  intrusion.  Suppose, 
for  instance,  a  street  were  sixty  feet  wide,  twelve  feet  might  be  taken 
off  it,  without  doing  an}-  material  injur}'  to  the  public  propert}',  or  cre- 
ating any  great  obstruction  to  passengers  ;  3'et,  surely  this  will  not 
justify  any  man's  actually  building  upon,  and  assuming  the  propert}'  of 
the  twelve  feet  that  could  be  thus  spared. 


STATE   y.  PRESNELL. 
Supreme  Court  of  North  Carolina.     1851. 

[Reported  12  hedell,  103.] 

Appeal  from  the  Superior  Court  of  Law  of  Randolph  County,  at  the 
Spring  Term,  1851,  his  Honor  Judge  Baily  presiding. 

This  is  an  indictment  for  selling  spirituous  liquor  to  a  slave,  contrary 
to  the  statute.  On  not  guilty  pleaded,  the  defendant  was  convicted  and 
fined  a  small  sura  ;  and  he  appealed.^ 

»  See  Rex  v.  Ogaeii,  6  C.  &  P.  631.  —  Ed. 
^  Part  of  the  case  is  omitted. 
12 


ITS  STATE   t\   PRESXELL.  [CHAP.  VI. 

The  counsel  fur  the  defendant  insisted  to  the  }nvy,  that  the  defendant 
had  reason  to  believe,  and  did  believe,  that  Nelson  was  buying  the 
liquor  for  his  master ;  and  he  furthermore  moved  the  court  to  instruct 
the  jury  that,  if  they  found  the  defendant  believed  the  slave  had  been 
sent  by  his  master  to  purchase  tlie  spirits  for  him,  he  ought  not  to  be 
convicted,  although  it  turned  out  that  he  was  mistaken  in  that  belief  and 
the  slave  had  no  authority'  from  his  master  to  buy  for  him.  But  the 
court  advised  the  jury  that  the  defendant  acted  at  his  peril  in  selling 
the  spirits  to  the  slave,  and  therefore,  although  he  might  have  believed 
that  the  negro  was  acting  as  the  agent  of  his  master,  they  ought  to  find 
the  defendant  guilty,  if,  in  point  of  fact,  he  had  not  any  authority  from 
his  master  to  make  the  purchase  for  him. — Verdict  and  judgment  for 
the  state  and  appeal  by  the  defendant. 

Attorney-  General,  for  the  state. 

Mendenhall  and  Morehead^  for  the  defendant. 

RuFFiN,  C.  J.  The  court  is  of  opinion  that  there  was  no  error  in 
the  instruction  given.  The  sale  of  spirituous  liquor  to  a  slave  is  appar- 
entl}'  illegal,  and  it  is  incumbent  upon  one  who  does  the  act  to  justify 
it  b^'  showing  that  it  was  done  under  such  circumstances  as  render  it 
lawful.  He  must  show,  not  merely  that  he  thought  that  such  circum- 
stances existed,  but  that  they  actually  existed.  It  was  said  that  when 
one  believes  he  is  not  doing  an  unlawful  thing,  there  is  not  the  guilt}' 
mind  necessary  to  constitute  a  crime.  But  that  is  not  correct.  When 
the  act  is  unlawful  and  voluntar}*,  the  quo  animo  is  inferred  necessarilj' 
from  the  act.  If  a  piece  be  brought  to  a  printer  for  publication,  wliich 
is  injurious  to  the  character  of  another,  and  the  author  make  such  rep- 
resentations and  adduce  such  proofs  in  support  of  the  charges  as  induce 
the  printer  to  believe  that  the}'  are  all  true,  and  ma}",  therefore,  be  law- 
fully published,  yet  the  publication  will  be  criminal  or  not,  as  it  may 
happen  that  the  charges  may  be  true  or  false  in  ix)int  of  fact.  For,  by 
making  the  publication  in  derogation  of  another,  the  printer  holds  out 
and  undertakes  that  the  charges  are  true.  Therefore  he  must  maintain 
their  actual  truth.  It  is  plain  that  his  belief  of  their  truth  does  not, 
then,  denote  that  innocence  of  intention  in  making  the  publication,  which 
can  prevent  it  from  being  a  crime,  if  they  prove  not  to  be  ti'ue ;  and 
there  is,  therefore,  in  that  case,  the  guilty  mind  spoken  of  So,  if  one 
trade  with  a  slave  upon  the  faith  of  an  order  or  permit  in  writing  in  the 
name  of  the  owner,  he  must  take  care  to  see  that  it  is  genuine.  For, 
if  it  be  not  genuine,  but  a  forgery,  then  the  authority  required  by  law 
for  dealing  with  a  slave  is  wanting,  and  the  party  would  be  guilty  under 
the  act.  Upon  that  point,  every  person  must  necessarily  take  the  risk 
of  judging  for  himself.  It  must  be  the  same  in  this  case  ;  for  the  act, 
being  against  the  policy  and  the  letter  of  the  law,  can  only  be  made 
innocent  by  sliowing  facts  which  in  law  justify  it,  and  not  by  showing 
merely  the  probability  or  the  party's  mistaken  belief  of  the  existence  of 
those  facts.  Those  circumstances  might  well  affect  the  degree  of  pun- 
ishment, and  seem  to  have  had  their  etfect  in  reduciug  the  fine  here  to 


SECT.  I.]  REYNOLDS   V.    UNITED   STATES.  179. 

almost  a  nominal  one.     But  they  could  not  prevent  the  act  from  being 
a  violation  of  the  law,  for  which  the  party  was  liable  to  conviction. 
Peu  Curiam,  Judgment  ajfirmed. 


REYNOLDS  v.  UNITP:D   STATES. 

SUPKEME    COUKT   OF   THE    UNITED    SxATES.       1878. 
[Reported  98  United  States,  145.] 

Eiiuou  to  the  Supreme  Court  of  the  Territory  of  Utah. 

This  is  au  indictment  found  in  the  District  Court  for  the  third  judicial 
district  of  the  Territory  of  Utah,  charging  George  Reynolds  with  bigamy 
in  violation  of  sect.  5352  of  the  Revised  Statutes.^ 

Mr.  Chief  Jcstice  Waite  delivered  the  opinion  of  the  court. 

In  our  opinion,  the  statute  immediately  under  consideration  is  within 
the  legislative  power  of  Congress.  It  is  constitutional  and  valid  as  pre- 
scribing a  rule  of  action  for  all  those  residing  in  the  Territories,  and  in 
places  over  which  the  United  States  have  exclusive  control.  This  being 
so,  the  only  question  which  remains  is,  whether  those  who  make  polyg- 
amy a  part  of  their  religion  are  excepted  from  the  operation  of  the 
statute.  If  they  are,  then  those  who  do  not  make  polygamy  a  part  of 
their  religious  belief  may  be  found  guilty  and  punished,  while  those 
who  do,  must  be  acquitted  and  go  free.  This  would  be  introducing  a 
new  element  into  criminal  law.  Laws  are  made  for  the  government  of 
actions,  and  while  they  cannot  interfere  with  mere  religious  belief  and 
opinions,  they  may  with  practices.  Suppose  one  believed  that  human 
sacrifices  were  a  necessary  part  of  religious  worship,  would  it  be  seri- 
ously contended  that  the  civil  government  under  which  he  lived  could 
not  interfere  to  prevent  a  sacrifice?  Or  if  a  wife  religiously  believed  it 
was  her  duty  to  burn  herself  upon  the  funeral  pile  of  her  dead  husband, 
would  it  be  beyond  the  power  of  the  civil  government  to  prevent  her 
carrying  her  belief  into  practice? 

So  here,  as  a  law  of  the  organization  of  society  under  the  exclusive 
dominion  of  the  United  States,  it  is  provided  that  plural  marriages  shall 
not  be  allowed.  Can  a  man  excuse  his  practices  to  the  contrary  because 
of  his  religious  belief?  To  permit  this  would  be  to  make  the  professed 
doctrines  of  religious  belief  superior  to  the  law  of  the  land,  and  in  etfect 
to  permit  every  citizen  to  become  a  law  unto  himself.  Government 
could  exist  only  in  name  under  such  circumstances. 

A  criminal  intent  is  generally  an  element  of  crime,  but  every  man  is 
presumed  to  intend  the  necessary  and  legitimate  consequences  of  what 
he  knowingly  does.  Here  the  accused  knew  he  had  been  once  married, 
and  that  his  first  wife  was  living.     lie  also  knew  that  his  second  mar- 

1  Part  only  of  the  case,  relating  to  the  (juestiou  of  iuteut,  is  here  given. 


180  UNITED    STATES    V.    HARMON.  [CHAP.  VI. 

riage  was  forbidden  by  law.  When,  therefore,  he  married  the  second 
time,  he  is  presumed  to  have  intended  to  break  the  law.  And  the 
breaking  of  the  law  is  the  crime.  Every  act  necessar}'  to  constitute 
the  crime  was  knowingly  done,  and  the  crime  was  therefore  knowinglj- 
committed.  Ignorance  of  a  fact  may  sometimes  be  taken  as  evidence 
of  a  want  of  criminal  intent,  but  not  ignorance  of  the  law.  The  onh* 
defence  of  the  accused  in  this  case  is  his  belief  that  the  law  ought  not 
to  have  been  enacted.  It  matters  not  that  his  belief  was  a  part  of  his 
professed  religion  ;  it  was  still  belief,  and  belief  only.^ 


UNITED   STATES   v.  HARMON. 
United  States  District  Court,  Dist.  of  Kansas.     1891. 

[Reported  45  Federal  Reporter,  414.] 

Philips,  J.^  Reduced  to  its  actual  essence,  the  ultimate  position  of 
defendant  is  this :  That  although  the  language  employed  in  the  given 
article  may  be  obscene,  as  heretofore  defined,  j'et  as  it  was  a  necessary 
vehicle  to  convey  to  the  popular  mind  the  aggravation  of  the  abuses  in 
sexual  commerce  inveighed  against,  and  the  object  of  the  publisher 
being  to  correct  the  evil  and  thereb}'  alleviate  human  condition,  the 
author  should  be  deemed  a  public  benefactor,  rather  than  a  malefactor. 
In  short,  the  proposition  is  that  a  man  can  do  no  public  wrong  who 
believes  that  what  he  does  is  for  the  ultimate  public  good.  The  under- 
lying vice  of  all  this  character  of  argument  is  that  it  leaves  out  of  view 
the  existence  of  the  social  compact,  and  the  idea  of  government  b}-  law. 
If  the  end  sought  justifies  the  means,  and  there  were  no  arbiter  but  the 
individual  conscience  of  the  actor  to  determine  the  fact  whether  the 
means  are  justifiable,  homicide,  infanticide,  pillage,  and  incontinence 
might  run  riot ;  and  it  is  not  extravagant  to  predict  that  the  success  of 
such  philosoph}'  would  remit  us  to  that  barbaric  condition  where 

"  No  common  weal  the  human  tribe  allied, 
Bound  by  no  law,  by  no  fixed  morals  tied, 
Each  snatched  the  booty  which  his  fortune  brought, 
And  wise  in  instinct  each  his  welfare  sought." 

Guiteau  stoutl}'  maintained  to  the  end  his  sanity,  and  that  he  felt  he 
had  a  patriotic  mission  to  fulfil  in  taking  off  President  Garfield,  to  the 
salvation  of  a  political  part}'.    The  Hindu  mother  cast  her  babe  to  the 

1  Ace.  State  v.  White,  64  N.  H.  48,  5  Atl.  828.  —  Ed. 

2  Part  of  the  opinion  only  is  f^iven.  The  case  was  an  imlictment  for  depositing  an 
obscene  publication  in  the  United  States  post-office  in  violation  of  the  provisions  of 
section  3893  of  the  Revised  Statutes  of  the  United  States.  The  defendant  attemi)ted 
to  .justify  his  act  on  the  ground  that  he  was  actuated  solely  by  the  desire  to  improve 
sexual  habits,  and  thus  benefit  the  human  race.  —  Ed, 


SECT.  II.]  DOBBS'S   CASE.  181 

advoining  Ganges  to  appease  the  gods.  But  civilized  societ}'  says  both 
are  murderers.  The  Mormon  contends  that  his  religion  teaches  polyg- 
amy ;  and  there  is  a  school  of  so-called  "  modern  thinkers"  who  would 
abolish  monogamy,  and  erect  on  the  ruins  the  flagrant  doctrine  of 
promiscuity,  under  the  disguise  of  the  adinities.  All  these  claim  liberty 
of  conscience  and  tliougiit  as  the  basis  of  their  dogmas,  and  the  pro 
bono  publico  as  the  strength  of  their  claim  to  indulgence.  The  law 
against  adultery  itself  would  lie  dormant  if  the  libertine  could  get  the 
courts  to  declare  and  the  jury  in  obedience  thereto  to  say  that  if  he 
invaded  the  sanctuary  of  conjugal  life  under  the  belief  that  the  improve- 
ment of  the  human  race  demanded  it  lie  was  not  amenable  to  the  statute. 
Society  is  organized  on  the  theory,  born  of  the  necessities  of  human 
well-being,  that  each  member  yields  up  something  of  his  natural  privi- 
leges, predilections,  and  indulgences  for  the  good  of  the  composite 
community  ;  and  he  consents  to  all  the  motto  implies,  salus  2)0pidi 
siqirema  est  lex;  and,  as  no  government  can  exist  without  law,  the  law- 
making power,  within  the  limits  of  constitutional  authority,  must  be 
recognized  as  the  body  to  prescribe  what  is  right  and  prohibit  what  is 
wrong.  It  is  the  very  incarnation  of  the  spirit  of  anarchy  for  a  citizen 
to  proclaim  that  like  the  heathen  he  is  a  law  unto  himself.  The  respon- 
sibility for  this  statute  rests  upon  Congress.  The  duty  of  the  courts  is 
imperative  to  enforce  it  while  it  stands.* 


SECTION    II. 

Specific  Intent. 

DOBBS'S   CASE. 

Buckingham  Assizes.     1770. 

[Reported  2  East,  P.  C.  .513.] 

Joseph  Dobbs  was  indicted  for  burglary  in  breaking  and  entering 
the  stable  of  James  Baylcy,  part  of  his  dwelling-house,  in  the  night, 
with  a  felonious  intent  to  kill  and  destroy  a  gelding  of  one  A.  B.,  there 
being.  It  appeared  that  the  gelding  was  to  have  run  for  forty  guineas, 
and  that  the  prisoner  cut  the  sinews  of  his  fore-leg  to  prevent  his  run- 
ning, in  consequence  of  which  he  died. 

Parker,  C.  B.,  ordered  him  to  be  acquitted  ;  for  his  intention  was 
not  to  commit  the  felony,  by  killing  and  destroying  the  horse,  but  a 
trespass  only  to  prevent  his  running ;  and  therefore  no  burglary. 

But  the  prisoner  was  again  indicted  for  killing  the  horse,  and 
capitally  convicted. 

1  Ace.  Reg.  V.  Hickliu.  L.  R.  3  Q.  B.  360.  —  Ed. 


182  HEX  V.   KELLY.  [CHAP.  VL 


REX   y.  BOYCE. 
Crown  Case  Reserved.     1824. 

[Reported  1  Moodi/,  29.] 

The  prisoner  was  tried  before  Thomas  Denman,  Esq.,  Common 
Serjeant  at  the  Old  Baile}'  Sessions,  June,  1824,  upon  an  indictment  for 
feloniously  cutting  and  maiming  John  P'ish])urn,  with  intent  to  murder, 
maim,  and  disable.^  There  was  no  count  which  charged  an  intent  to 
prevent  his  lawful  apprehension. 

The  facts  were  these  : 

The  prisoner  had,  in  the  night  time,  broken  into  a  shop  in  Fleet 
Market,  and  was  there  discovered  b}'  the  prosecutor,  who  was  a  watch- 
man, at  a  quarter  before  five  in  the  morning  of  the  11th  of  April,  1820. 
On  the  prosecutor  entering  the  shop  for  the  purpose  of  apprehending 
him,  the  prisoner  struck  him  with  his  fist,  which  blow  the  prosecutor 
returned.  The  prisoner  then  said,  "I  will  serve  3-ou  out  —  I  will  do 
for  3'ou  ;  "  and,  taking  up  a  crow-bar,  struck  the  prosecutor  with  it 
two  severe  blows,  one  on  the  head,  the  other  on  the  arm  ;  he  then 
ran  away,  ordering  the  prosecutor  to  sit  on  a  block  in  the  shop,  and 
threatening  that  it  would  be  worse  for  him  if  he  moved. 

The  crow-bar  was  a  sharp  instrument,  and  the  prosecutor  was  cut 
and  maimed  bj'  the  blows  so  given  with  it  by  the  prisoner. 

The  prisoner  was  found  guilt}*;  and,  on  an  answer  to  a  question  from 
the  Common  Serjeant,  the  jury  said,  ''We  find  that  he  was  there  with 
intent  to  commit  a  robber}',  and  that  he  cut  and  maimed  the  watchman 
with  intent  to  disable  him  till  he  could  effect  his  own  escape."  ~~~ 

The  Common  Serjeant  reserved  the  above  case  for  the  consideration 
of  the  judges. 

In  Trinity  Term,  1824,  all  the  judges  (except  Graham,  B.  and 
Garrow,  B.)  met,  and  considered  this  case,  and  held  the  conviction 
wrong,  for,  by  the  finding  of  the  jury,  the  prisoner  intended  only  to 
produce  a  temporary  disability  till  he  could  escape,  not  a  permanent 
one.'' 


REX  V.   KELLY. 

MoNAGHAN  Assizes,  Ireland.     1832. 

[Reported  1  Crawford  ^  Dix,  186.] 

Indictment  for  maliciously  killing  a  horse.    The  evidence  was  that 
the  prisoner  had  fired  at  the  prosecutor,  and  killed  his  horse. 

1  See  43  Geo.  III.  c.  58,  §  1. 

»  Ace.  Rex  V.  DufEu,  Russ.  &  Ry.  365.  —  Ed. 


SECT.  II.]  COMMONWEALTH    V.    IIERSKY.  183 

BusHE,  C.  J.     Under  this  Act  ^  tlie  offence  must  be  proved  to  have 
been  done  maliciously,  and  malice  implies  intention.     Here  the  proof 
I  negatives  the  intentiuii  of  killing  the  horse.     The  prisoner  must  there- 
fore be  acquitted." 


COMMONWEALTH   u.   HERSEY. 
Supreme  Judicial  Coukt  of  Massachusetts.     1861. 

[Re}K>rted  2  lillen,  173.] 

BiGELOw,  C.  J.  The  motion  in  arrest  oC  judgment  in  the  present 
case  is  founded  on  the  omission  to  aver  that  the  defendant,  in  adminis- 
tering poison  to  the  deceased,  ilid  it  with  an  intent  to  kill  and  murder. 
No  direct  authority  or  adjudication  has  been  cited  by  the  counsel  for 
the  prisoner  in  support  of  the  position  that  such  an  averment  is  neces- 
sary or  essential  to  the  validity  of  the  indictment.  They  do,  however, 
rely  on  forms  or  precedents,  which  arc  found  in  text  books  of  approved 
authority  and  in  reported  cases,  in  which  the  allegation  tliat  the  poison 
was  administered  with  intent  to  kill  is  distinctly  set  forth.  Wharton's 
Precedents  (2d  ed.),  125-138;  Archb.  Crim.  PL  (5th  Amer.  ed.),  4.32; 
2  Cox  C.  C,  Appendix  III. ;  Davis's  Precedents,  182-186.  But,  on 
the  other  hand,  it  is  certainly  true  that  there  are  precedents  entitled 
to  equal  respect  with  those  cited  by  the  prisoner's  counsel,  in  which 
no  such  averment  is  made,  as  a  separate  and  substantive  allegation 
essential  to  the  description  of  the  crime,  and  distinct  from  the  general 
prefatory  clause,  in  which  a  general  intent  to  kill  is  stated  without  any 
averment  of  time  and  place.  2  Stark.  Crim.  PI.  12,  15,  18;  1  Ea?!t 
P.  C.  r.  5,  §  116;  3  Chit.  Crim.  Law,  773,  771»  ;  The  King  v.  Clark, 
1  Brod.  &  Bing.  473  ;  Rcgina  u.  Alison.  8  C  &  P.  418.  So  far  tlioro- 
fore  as  the  question  now  raised  depends  on  authority,  it  may  fairl}' 
be  said  to  be  an  open  one.  It  would  be  giving  too  much  force  to  mere 
precedents  of  forms,  which  often  contain  unnecessary  and  siipcrfltions 
averments,  to  hold  tliat  a  particular  allegation  is  essential  to  the  validity 
of  an  indictment,  because  it  has  sometimes,  or  even  generally,  been 
adopted  by  text  writers  or  b}-  cautious  pleaders. 

We  are  then  to  determine  the  question  as  one  depending  on  the 
general  rules  of  criminal  pleading  applicable  to  the  description  of  similar 
ofTenccs.  Tliorc  can  be  no  doubt  that,  in  every  case,  to  render  a  party 
responsible  for  a  felony,  a  vicious  will  or  wicked  intent  must  concur 
with  a  wrongful  act.  But  it  does  not  follow  that,  because  a  man  can- 
not commit  a  felon}'  unless  he  lias  an  evil  or  malicious  mind  or  will,  it 
is  necessary  to  aver  the  guilty  intent  as  a  substantive  part  of  the  crime 

1  9  Geo.  IV.  c.  56,  §  17. 

2  Ace.  Com.  i;.  Waldcn,  3  Gush.  558.  —  Ed. 


184  COMMONWEALTH   V.   HERSEY.  [CHAP.  VI. 

in  giving  a  technical  description  of  it  in  the  indictment.  On  the 
contrary,  as  the  law  presumes  that  every  man  intends  the  natural  and 
necessary  consequences  of  his  acts,  it  is  sufficient  to  aver  in  apt  and 
technical  words  that  a  defendant  committed  a  criminal  act,  without 
alleging  the  specific  intent  with  which  it  was  done.  In  such  case,  the 
act  necessarilj'  includes  the  intent.  Thus,  in  charging  the  crime  of 
burglary  it  is  not  necessary  to  aver  that  the  breaking  and  entering  a 
house  was  done  with  an  intent  to  steal.  It  is  sufficient  to  charge  the 
breaking  and  entering  and  an  actual  theft  by  the  defendant.  The 
reason  is  that  the  fact  of  stealing  is  the  strongest  possible  evidence  of 
the  intent,  and  the  allegation  of  the  theft  is  equivalent  to  an  averment 
of  that  intent.  Commonwealth  v.  Hope,  22  Pick.  1,  5 ;  2  East  P.  C 
c.  15,  §  24.  So  in  an  indictment  for  murder  b}'  blows  or  stabs  with  a 
deadl}'  weapon,  it  is  never  necessary'  to  allege  that  they  were  inflicted 
with  an  intent  to  kill  or  murder.  The  law  infers  the  intent  from  proof 
that  the  acts  were  committed,  and  that  death  ensued.  The  averment, 
therefore,  of  the  criminal  act  comprehends  the  evil  or  wicked  intention 
with  which  it  was  committed.  The  true  distinction  seems  to  be  this : 
when  by  the  common  law  or  by  the  provision  of  a  statute  ii  particular 
intention  is  essential  to  an  oflTence,  or  a  criminal  act  is  attempted  but 
not  accomplished,  and  the  evil  intent  only  can  be  punished,  it  is  neces- 
sary to  allege  the  intent  with  distinctness  and  precision,  and  to  support 
the  allegation  by  proof.  On  the  other  hand,  if  the  offence  does  not 
rest  merely  in  tendency,  or  in  an  attempt  to  do  a  certain  act  with  a 
wicked  purpose,  but  consists  in  doing  an  unlawful  or  criminal  act,  the 
evil  intention  will  be  presumed  and  need  not  be  alleged,  or,  if  alleged, 
it  is  a  mere  formal  averment,  which  need  not  be  proved.  In  such  case, 
the  intent  is  nothing  more  than  the  result  which  the  law  draws  from 
the  act,  and  requires  no  proof  beyond  that  which  the  act  itself  supplies. 
1  Stark.  Grim.  PI.  165  ;  1  Chit.  Grim.  Law,  233  ;  The  King  v.  Philipps, 
6  East.  474  ;  1  Hale  P.  C.  455  ;  Commonwealth  v.  Merrill,  14  Gray,  415. 
To  illustrate  the  application  of  the  rule,  take  the  case  of  an  indictment 
for  an  assault  with  an  intent  to  commit  a  rape.  The  act  not  being 
consummated,  the  gist  of  the  offence  consists  in  the  intent  with  which 
the  assault  was  committed.  It  must  therefore  be  distinctly  alleged  and 
proved.  But  in  an  indictment  for  the  crime  of  rape,  no  such  averment 
is  necessary.  It  is  sufficient  to  allege  the  assault,  and  that  the  defend- 
ant had  carnal  knowledge  of  a  woman  by  force  and  against  her  will. 
The  averment  of  the  act  includes  the  intent,  and  proof  of  the  commis- 
sion of  the  offence  draws  with  it  the  necessary  inference  of  the  criminal 
intent.  The  same  is  true  of  indictments  for  assault  with  intent  to  kill, 
and  murder.  In  the  former,  the  intent  must  be  alleged  and  proved. 
In  the  latter,  it  is  only  necessary  to  allege  and  prove  the  act.  The 
application  of  this  principle  to  the  case  at  bar  is  decisive  of  the  ques- 
tion raised  by  the  present  motion.  There  is  nothing  in  the  nature  of 
the  crime  of  murder  by  poison  to  distinguish  it  from  homicide  by  other 
unlawful  means  or  instruments  so  as  to  render  it  necessary  that  it  should 


SECT.  III.]  NEGLIGENCE.  185 

be  set  out  with  fuller  averments  concerning  the  intention  with  wliich 
the  criminal  act  was  committed.  If  a  person  administers  to  another 
that  which  he  knows  to  be  a  deadly  poison,  and  death  ensues  there- 
from, the  averment  of  these  facts  in  technical  form  necessarily  involves 
and  includes  the  intent  to  take  life.  It  is  the  natural  and  necessary 
consequence  of  the  act  done,  from  which  tlie  law  infers  that  the  party 
knew  and  contemplated  the  result  which  followed,  and  that  it  was 
committed  with  the  guilt}'  intention'  to  take  life. 

It  was  urged  by  the  counsel  for  the  prisoner,  as  an  argument  in 
support  of  the  insulliciency  of  the  indictment,  that  every  fact  stated 
in  the  indictment  might  have  been  done  by  the  defendant,  and  yet  he 
might  have  committed  no  offence ;  that  is,  that  a  person  might  admin- 
ister to  another  that  which  he  knew  to  be  a  deadly  poison,  from  which 
death  ensued,  innocentl}'  and  without  an}'  intent  to  do  bodily  harm. 
In  a  certain  sense  this  is  true.  A  physician,  for  example,  might  in  the 
exercise  of  due  care  and  skill  give  to  his  patient  a  medicine  of  a  poison- 
ous nature,  in  the  honest  belief  that  it  would  cure  or  mitigate  disease, 
but  which  from  unforeseen  and  unexpected  causes  actually  causes  death. 
And  tlie  same  is  true  of  many  other  cases  of  homicide  produced  l)y 
other  means  than  poison.  Take  the  case  of  a  murder  alleged  to  have 
been  committed  by  stabs  or  cuts  with  a  knife.  Such  wounds  may  be 
inflicted  innocently  and  for  a  lawful  purpose.  A  surgeon  in  perform- 
ing a  delicate  and  difficult  operation,  by  a  slight  deflection  of  the  knife, 
which  the  most  cautious  skill  could  not  prevent,  might  inflict  a  wound 
which  destroys  life.  But  it  has  never  been  deemed  necessary,  because 
certain  acts  which  cause  death  may  be  done  without  any  wicked  or 
criminal  intent,  to  aver  in  indictments  for  homicide,  that  the  person 
charged  acted  with  an  intent  to  take  life.  The  corrupt  and  wicked 
purpose  with  which  a  homicidal  act  is  done  is  sufficier.tly  expressed  by 
the  averment  that  it  was  committed  wilfulh'  and  with  malice  afore- 
thought ;  and  this  allegation  may  be  always  disproved  by  showing  that 
the  act  happened  per  infortunium^  or  was  otherwise  excusable  or 
justifiable.  Motion  in  arrest  of  judgment  overruled. 


SECTION   III. 

Negligence. 

(a)  Negligent  Acts  of  Commission. 

FosTKR,  Crown  Law,  262.  It  is  not  sufficient  that  the  act  upon  which 
death  ensueth  be  lawful  or  innocent,  it  must  be  done  in  a  proper  manner 
and  with  due  caution  to  prevent  mischief     Parents,  masters,  and  other 


186  NEGLIGENCE.  [CHAP.  VI. 

persons  having  authorit}'  inforo  domestlco,  ma}'  give  reasonable  correc- 
tion to  those  under  their  care  ;  and  if  death  ensueth  without  their  fault, 
it  will  be  no  more  than  accidental  death.  But  if  the  correction  exceedcth 
the  bounds  of  due  moderation,  either  in  the  measure  of  it  or  in  the  instru- 
ment made  use  of  for  that  purpose,  it  will  be  either  murder  or  manslaughter 
according  to  the  circumstances  of  the  case.  If  with  a  cudgel  or  other 
thing  not  likely  to  kill,  though  improper  for  the  purpose  of  correction, 
manslaughter.  If  with  a  dangerous  weapon  likel}'  to  kill  or  maim,  due 
regard  being  always  had  to  tlie  age  and  strength  of  tlie  part}',  murder. 

This  rule  touching  due  caution  ought  to  be  well  considered  by  all 
persons  following  their  lawful  occupations,  especially  such  from  whence 
danger  may  probabl}'  arise. 

AVorkmen  throw  stones,  rubbish,  or  other  things  from  an  house  in  the 
ordinary  course  of  their  business,  by  which  a  person  underneath  hap- 
peneth  to  be  killed.  If  thej'  look  out  and  give  timely  warning  beforehand 
to  those  below,  it  will  be  accidental  death.  If  without  such  caution,  it 
will  amount  to  manslaughter  at  least.  It  was  a  lawful  act,  but  done  in 
an  improper  manner. 

I  need  not  state  more  cases  by  wa}'  of  illustration  under  this  head  ; 
these  are  sufficient.  But  I  cannot  pass  over  one  reported  by  Kelyng 
(Kel.  41),  because  I  think  it  an  extremely  hard  case,  and  of  very  exten- 
sive influence.  A  man  found  a  pistol  in  the  street,  wliich  he  had  reason 
to  believe  was  not  loaded,  having  tried  it  with  the  rammer ;  he  carried 
it  home  and  showed  it  to  his  wife ;  and  she  standing  before  him  he 
pulled  up  the  cock,  and  touched  the  trigger.  The  pistol  went  off  and 
killed  the  woman.    This  was  ruled  manslaughter. 

It  appeareth  that  ttie  learned  editor^  was  not  satisfied  with  the  judg- 
ment. It  is  one  of  the  points  he  in  the  preface  to  the  report  recom- 
mendeth  to  farther  consideration. 

Admitting  that  the  judgment  was  strictly  legal,  it  was,  to  say  no 
better  of  it,  sicmmzwi  jus. 

The  law  in  these  cases  doth  not  require  the  utmost  caution  that  can 
be  used  ;  it  is  sufficient  that  a  reasonable  precaution,  what  is  usual  and 
ordinary  in  the  like  cases,  be  taken.  In  the  case  just  mentioned  of 
workmen  throwing  rubbisli  from  buildings,  the  ordinary  caution  of  look- 
ing out  and  giving  warning  by  outcrv  from  above  will  excuse,  though 
doubtless  a  better  and  more  effectual  warning  might  have  been  given. 
But  this  excuseth,  because  it  is  what  is  usually  given,  and  hath  been 
found  by  long  experience,  in  the  ordinary  course  of  things,  to  answer 
the  end.  The  man  in  the  case  under  consideration  examined  the  pistol 
in  the  common  way  ;  perhaps  the  rammer,  which  he  had  not  tried  before, 
was  too  short  and  deceived  liim.  But  having  used  the  ordinary  caution, 
found  to  have  been  effectual  in  the  like  cases,  he  ought  to  have  been 
excused. 

1  Chief  Justice  Holt. 


SECT."  III.]  REGINA   V.   CHAMBERLAIN.  187 

I  have  been  the  longer  upon  this  case,  because  accidents  of  this 
lamentable  kind  may  be  the  lot  of  the  wisest  and  the  best  of  mankind, 
and  most  commonly  full  among  the  nearest  friends  and  relations  ;  and 
in  such  a  case  the  forfeiture  of  goods,  rigorously  exacted,  would  be 
heaping  alHiction  upon  the  head  of  the  alllicted,  and  galling  an  heart 
already  wounded  past  cure.  It  would  even  aggravate  the  loss  of  a 
brother,  a  parent,  a  child,  or  wife,  if  such  a  loss  under  such  circum- 
stances is  capable  of  aggravation. 

I  once  upon  the  circuit  tried  a  man  for  the  death  of  his  wife  by  the 
like  accident.  Upon  a  Sunday  morning  the  man  and  his  wife  went  a 
mile  or  two  from  home  with  some  neighbors  to  take  a  dinner  at  the 
house  of  their  common  friend.  He  carried  his  gun  with  him,  hoping 
to  meet  with  some  diversion  by  the  way  ;  but  before  he  went  to  dinner 
he  discharged  it,  and  set  it  up  in  a  private  place  in  his  friend's  house. 
After  dinner  he  went  to  church,  and  in  the  evening  returned  home  with 
his  wife  and  neighbors,  bringing  his  gun  with  him,  which  was  carried 
into  the  room  where  his  wife  was,  she  having  brouglit  it  part  of  the  way. 
He  taking  it  up  touched  the  trigger,  and  the  gun  went  off  and  killed  his 
wife,  whom  he  dearly  loved.  It  came  out  in  evidence  that,  while  the 
man  was  at  church,  a  person  belonging  to  the  family  privately  took  the 
gun,  charged  it  and  went  after  some  game ;  but  before  the  service  at 
church  was  ended  returned  it  loaded  to  the  place  whence  he  took  it, 
and  where  the  defendant,  who  was  ignorant  of  all  that  had  passed, 
found  it,  to  all  appearance  as  he  left  it.  I  did  not  inquire  whether  the 
poor  man  had  examined  the  gun  before  he  carried  it  home ;  but  being 
of  opinion  upon  the  whole  evidence,  that  he  had  reasonable  grounds  to 
believe  that  it  was  not  loaded,  I  directed  the  jury,  that  if  they  were  of 
the  same  opinion  they  should  acquit  him.    And  he  was  acquitted. 


REGINA   V.  CHAMBERLAIN. 
Hertford  Assizks.     1867. 

[Reported  10  Cox  C.  C.  486.] 

Ikdictmext  for  manslaughter. 

The  prisoner  had  resided  for  many  years  in  Hertford,  carrying  on  the 
business  of  a  herbalist,  and  he  was  also  what  was  called  a  "  quack  doc- 
tor." The  deceased  woman  had  for  some  years  a  tumor  on  her  shoulder, 
and  in  March,  180(5,  she  consulted  the  prisoner,  who  gave  her  first  a 
mercurial  ointment,  to  which  no  objection  was  taken.  After  this,  Iiow- 
ever,  it  was  said  he  gave  her  a  ditferent  ointment,  which  was  arsenical, 
and  this  it  was  suggested  had  caused  her  death  by  being  absorbed  into 
the  system.  The  case  for  the  prosecution  was  that  she  became  worse 
after  she  used  this  ointment,  that  is  to  say,  in  August,  18GG  ;  that  she 


188  KEOINA   V.    CHAMBERLAIN.  fCHAP.  VI. 

suffered  from  arsenical  sj'inptoms  ;  and  that  her  death,  which  happened 
in  September,  was  owing  to  this  cause.  It  was  not  disputed  that  she 
died  with  the  sj'raptoms  of  arsenic,  nor  that  there  was  arsenic  in  the 
ointment  she  used  ;  the  real  question  in  the  case  was  whether  there  was 
"culpable  negligence"  on  the  part  of  the  prisoner  in  giving  it  without 
due  precautions.  That  being  the  question  in  the  case,  it  turned  a  good 
deal  upon  the  medical  evidence  as  to  the  use  of  arsenic  in  ointments. 
As  to  this  Dr.  Ta^-lor  admitted  that  it  was  used  upon  the  Continent, 
and  that  it  had  been  used  in  this  country  until  within  the  last  thirty 
years,  when  he  said  it  was  discovered  that  it  was  absorbed  into  the  sys- 
tem, and  it  was  discontinued  in  this  country,  though  it  still  was  used 
upon  the  Continent.  The  foreign  practitioners,  he  said,  were  a  little 
more  given  to  a  bold  system  in  cases  apparently  hopeless,  and  a  little 
more  disposed  to  what  he  called  "  heroic"  treatment  —  that  is  to  sa}-, 
treatment  in  which  the  medical  practitioner  for  the  sake  of  the  patient 
runs  some  risk  —  than  our  English  practitioners,  who,  he  intimated, 
were  rather  more  cautious  in  such  cases.  Another  point  on  which  the 
case  turned  was  as  to  the  prisoner  not  having  warned  the  deceased  of 
the  necessar}'  effect  of  the  arsenic  when  absorbed  into  the  system.  It 
did  not  appear  that  he  had  given  any  particular  directions  beyond  tell- 
ing her  to  "rub  some  of  the  ointment  in  ;"  and  the  woman,  naturally 
thinking  that  the  more  she  rubbed  the  better,  had  rubbed  and  rubbed 
until  she  liad  absorbed  so  much  of  the  poison  that  she  died  ;  and  the 
prisoner  had  sold  her  another  box  without,  as  it  appeared,  making  any 
observation  as  to  the  effect  of  the  first. 

Parry,  Serjt.,  for  the  prisoner,  contended  that  it  was  a  case  of  a 
mere  blunder  or  error,  and  not  a  case  of  negligence  so  culpable  as  to 
be  criminal. 

Blackburn,  J.,  to  the  jury.  If  the  prisoner  by  culpable  negligence 
had  caused  the  death  of  the  deceased  woman,  he  was  guilty  of  man- 
slaughter ;  but  the  mere  fact  that  death  had  occurred  through  mistake 
or  misfortune  would  not  be  enough,  or  no  medical  man  would  be  safe- 
There  must,  however,  be  competent  knowledge  and  care  in  dealing  with 
a  dangerous  drug,  and  if  the  man  either  was  ignorant  of  the  nature  of 
the  drug  he  used  or  was  guilty  of  gross  want  of  care  in  its  use,  there 
would  be  criminal  culpability.  In  the  one  case  there  would  be  culpable 
rashness  in  using  so  dangerous  a  drug  in  ignorance  of  its  operation  ;  in 
the  other  case  there  would  be  culpable  want  of  care  or  culpable  care- 
lessness in  the  use  of  the  drug ;  and  in  either  case  that  would  be  culpa- 
ble and  criminal  negligence,  which  would  justify  a  conviction,  supposing 
the  jury  were  satisfied  that  the  death  arose  from  the  arsenic.  The  first 
question  was,  whether  the  death  was  caused  by  the  arsenic  administered 
by  the  prisoner ;  upon  which,  however,  he  thought  the  evidence  very 
strong.  The  real  question  would  be  whether  there  was  culpable  negli- 
gence, which  resolved  itself  into  the  two  questions  he  had  explained. 
He  could  not  define  the  nature  of  "  culpable  negligence"  otherwise  than 
as  he  had  described  it.     It  was  a  question  for  the  jury,  for  it  was  a 


SECT.  III.]  REGINA   V.    SALMON.  189 

question  of  degree.  It  was  a  question  of  more  or  less,  and  it  could  not 
be  defined.  All  the  direction  he  could  give  them  was  that  if  the  prisoner 
administered  the  arsenic  without  knowing  or  taking  the  pains  to  find  out 
what  its  elfect  would  be,  or  if  knowing  this,  he  gave  it  to  the  patieiit  to 
be  used  without  giving  her  adequate  directions  as  to  its  use,  there  would 
in  either  view  of  the  case  be  culpable  negligence,  and  the  prisoner  ought 
to  be  convicted;  but  if  otherwise,  there  would  not  be  such  negligence, 
and  the  prisoner  ought  to  be  acquitted.  The  most  serious  part  of  the 
case  was  in  the  apparent  absence  of  caution  or  directions  to  the  wouuui 
as  to  the  use  of  the  arsenical  ointment,  the  effect  of  which,  as  was  well 
known,  was  that  it  would  be  absorbed  into  the  S3stem  so  as  to  cause 
death.  It  was  said  that  foreign  doctors  used  it,  but  if  so  it  might  be 
presumed  that  the}'  watched  its  use  with  care.  It  appeared  to  him  that 
a  medical  man  who  should  administer  such  a  drug  or  allow  a  patient  to 
api)ly  it  without  taking  any  care  to  observe  its  effects  or  guard  against 
them,  would  be  gravely  wanting  in  due  care.  Whether  under  the  cir- 
cumstances it  amouuted  to  culpable  negligence  was,  he  repeated,  for 
the  jury.  iVbi  guilty.^ 


REGINA   V.  SALMON. 
Crown  Case  Reserved.     1880. 

[Reported  14  Cox  C.  C.  494.] 

Case  reserved  for  the  opinion  of  this  court  by  Lord  Coleridge,  C.  J. , 
at  the  Summer  Assizes  at  Wells,  1880. 

The  three  prisoners  were  tried  for  the  manslaughter  of  William  Wells, 
a  little  bo}'  often  3'ears  old.  The  prisoners  went  into  a  field,  and  each 
fired  a  shot  from  a  rifle  at  a  target.  One  of  the  shots  killed  the  deceased, 
who  was  at  the  time  in  a  tree  in  his  father's  garden,  distant  about  four 
hundred  yards  from  the  spot  where  the  shot  was  fired.  The  rifle  was 
sighted  for  nine  hundred  and  fifty  yards,  and  would  probably  be  deadl}' 
at  a  mile.  It  did  not  appear  which  one  of  the  prisoners  fired  the  fatal 
shot.2 

No  counsel  appeared  to  argue  on  behalf  of  the  prisoners. 

Harris  for  the  prosecution.  The  prisoner  who  fired  the  fatal  shot 
was  clearly  guilty  of  manslaughter,  but  the  evidence  of  his  identity  not 
being  clear,  the  rule  that  all  persons  engaged  in  a  common  enterprise 
are  jointly  liable  will  apply.  All  the  prisoners  went  into  the  field  for 
a  common  purpose,  rifle  practice  ;  and  it  was  tlieir  dut}'  to  take  all 
proper  precautions  to  prevent  any  danger  to  other  persons.  Tlie  plan 
attached  to  the  case  shows  that  they  fired  across  three  highways,  and 

1  Ace.  Reg.  V.  Macleod,  12  Cox  C.  C.  534;  State  v.  Hardister,  38  Ark.  605;  Cora, 
p.  Pierce,  138  Ma.ss.  165.  —  Ed. 

*  This  btatement  of  the  case  is  condensed  from  the  report  of  Lord  Coleridge.  —  Ed. 


190  REX  V.   FRIEND.  [CHAP.  VI. 

that  they  were  firing  too  near  to  the  neighboring  gardens,  iu  one  of 
which  the  deceased  boy  was. 

Lord  Colekidge,  C.  J.  I  am  of  opinion  that  the  conviction  was 
right  and  ought  to  be  affirmed.  If  a  person  does  a  thing  which  iu  itself 
is  dangerous,  and  without  taking  proper  precautions  to  prevent  danger 
arising,  and  if  he  so  does  it  and  kills  a  person,  it  is  a  criminal  act  as 
against  that  person.  That  would  make  it  clearl}'  manslaughter  as 
regards  the  prisoner  whose  shot  killed  the  bo}-.  It  follows  as  the  result 
of  the  culpable  negligence  of  this  one,  that  each  of  the  prisoners  is 
answerable  for  the  acts  of  the  others,  they  all  being  engaged  in  one 
common  pursuit. 

Field,  J.  I  am  of  the  same  opinion.  At  first  I  thought  it  was  ne- 
cessary to  show  some  duty  on  the  part  of  the  prisoners  as  regards  the 
boy,  but  I  am  now  satisfied  that  there  was  a  dut}-  on  the  part  of  the 
prisoners  towards  the  public  generally  not  to  use  an  instrument  likely 
to  cause  death  without  taking  due  and  proper  precautions  to  prevent 
injury  to  the  public.  Looking  at  the  character  of  the  spot  where  the 
firing  took  place,  there  was  sufficient  evidence  that  all  three  prisoners 
were  guilty  of  culpable  negligence  under  the  circumstances. 

Lopes,  J.,  concurred. 

Stephen,  J.  I  am  of  opinion  that  all  three  prisoners  were  guilty  of 
manslaughter.  The  culpable  omission  of  a  duty  which  tends  to  preserve 
life  is  homicide  ;  and  it  is  the  dut}'  of  every  one  to  take  proper  precau- 
tions in  doing  an  act  which  may  be  dangerous  to  life.  In  this  case  the 
firing  of  the  rifle  was  a  dangerous  act,  and  all  three  prisoners  were 
jointl}'  responsible  for  not  taking  proper  precautious  to  prevent  the 
danger. 

Watkin  Williams,  J.,  concurred.  Conviction  affinned. 


SECTION  nL  (continued.) 

(b)  Negligent  Acts  of  Omission. 

REX  V.   FRIEND. 
Crown  Case  Reserved.     1802. 

[Reported  Russell  ^  Ryan,  20.] 

The  prisoners  were  tried  before  Mr.  Justice  Le  Blanc  at  the  Exeter 
summer  assizes  in  the  year  1801,  on  an  indictment  for  a  misdemeanor, 
which  charged  that  they  did  take  and  receive  one  Sarah  Quill  into  the 
dwelling-house  of  the  prisoner,  John  Friend,  as  an  apprentice  of  the 
said  John  Friend,  to  be  by  him  treated,  maintained,  and  supported  as 
an  apprentice  of  him  the  said  John  Friend,  and  did,  for  a  long  time, 


SECT.  III.]  EEX  V.    FRIEND.  191 

have  and  keep  her  in  the  said  house  as  such  apprentice  as  aforesaid  ; 
and  that  during  the  said  time  they  so  had  and  kept  her  in  the  said 
house  as  such  apprentice,  the  said  prisoners,  and  each  of  them,  did, 
with  force  and  arms,  unlawfully  and  injuriously,  and  without  the  con- 
sent of  the  said  Sarah  Quill,  and  against  her  will,  neglect  and  refuse 
to  find  and  provide  for  and  to  give  and  administer  to  her,  being  so 
had  and  kept  as  such  apprentice  as  aforesaid,  sulhcient  meat,  drink, 
victuals,  wearing  apparel,  bedding,  and  other  necessaries  proper  and 
requisite  for  the  sustenance,  support,  maintenance,  clothing,  covering, 
and  resting  the  body  of  the  said  Sarah  Quill ;  by  means  whereof  she 
became  emaciated  and  almost  starved  to  death,  and  the  constitution 
and  frame  of  her  body  greatly  hurt  and  impaired,  «fec. 

It  was  proved  that  Sarah  Quill,  a  girl  of  thirteen  or  fourteen  years 
of  age,  went  to  live  with  Friend  as  an  apprentice,  and  continued  with 
him  about  a  year.^  It  was  objected,  on  behalf  of  the  prisoners,  that 
the  evidence  was  not  sufficient  to  prove  the  relation  of  master  and 
apprentice,  so  as  to  create  the  legal  obligation  on  the  master  to  pro- 
vide for  the  apprentice  sufficient  meat,  clothing,  &c.,  a  breach  of 
which  would  subject  him  to  a  criminal  prosecution. 

The  learned  judge  permitted  the  prosecution  to  proceed,  as  the 
indictment  was  in  other  respects  fully  supported  by  the  evidence.  The 
jury  found  John  Friend  guilty,  but  acquitted  Anne,  his  wife.  The 
learned  judge  thought  it  best  to  pass  sentence  of  imprisonment  on  the 
prisoner  ;  that  in  case  the  judges  should  be  of  opinion  that  the  above 
evidence  did  not  support  the  indictment,  a  pardon  might  be  obtained. 

At  a  meeting  of  all  the  judges  at  Lord  Kenyon's  chambers  on  the 
first  day  of  Michaelmas  term,  1801,  this  case  was  ordered  to  stand 
over  for  further  consideration  to  the  first  day  of  the  next  Hilary 
term  ;  on  that  day  it  was  further  adjourned  ;  and  after  Hilary  term, 
viz.  on  the  25th  of  February,  1802,  was  considered  at  a  meeting  of  all 
the  judges  (except  Lord  Kenyon  and  Mr.  Justice  Rooke).  The  gen- 
eral opinion  was,  that  it  was  an  iudictal)le  offence,  as  a  misdemeanor, 
to  refuse  or  neglect  to  provide  sufficient  food,  bedding,  &c.,  to  any 
infant  of  tender  years  unable  to  provide  for  and  take  care  of  itself 
(whether  such  infant  were  child,  apprentice,  or  servant),  whom  a  man 
was  obliged  by  duty  or  contract  to  provide  for,  so  as  thereby  to 
injure  its  health  ;  Init  that,  in  the  present  case,  the  indictment  was 
defective  in  not  stating  the  child  to  be  of  tender  years  and  unable  to 
provide  for  itself.  However,  as  in  the  present  case,  the  objection 
was  taken  to  the  evidence  not  supporting  the  indictment,  rather  than 
to  the  indictment  itself  ;  and  there  being  some  difference  of  opinion,  all 
the  judges  thought  it  right  that  the  final  decision  should  l)e  adjourned, 
and  that  the  prisoner  should  suffer  the  whole  of  his  imprisonment. 

Mr.  Justice  Chambre  thought  that  it  was  not  in  any  manner  an 
indictable  offence,  being  founded  wholly  on  contract. 

1  The  statement  of  facts  has  been  abridged.  —  En. 


192  KEGINA  V.   SmTH.  [CHAP.  VI. 


REGINA   V.   LOWE. 

WORCESTERSHIKE    ASSIZES.       1850. 
[Reported  3  Carrington  Sf  Kirwan,  123.] 

Manslaughter.  —  The  prisoner  was  indicted  for  the  manslaughter 
of  Thomas  Tibbitts. 

It  appeared  that  he  was  an  engineer,  and  that  his  duty  was  to  man- 
age a  steam-engine  employed  for  the  purpose  of  drawing  up  miners 
from  a  coal  pit ;  and  when  the  skip  containing  the  men  arrived  on  a 
level  with  the  pit's  mouth,  his  duty  was  to  stop  the  revolution  of 
the  windlass,  so  that  the  men  might  get  out.  He  was  the  only  man  so 
employed  on  the  premises.  On  the  day  in  question  he  deserted  his 
post,  leaving  the  engine  in  charge  of  an  ignorant  boy,  who,  before  the 
prisoner  went  away,  declared  himself  to  the  prisoner  to  be  utterly 
incompetent  to  manage  such  a  steam-engine  as  the  one  intrusted  to 
him.  The  prisoner  neglected  this  warning,  and  threatened  the  boy,  in 
case  he  refused  to  do  as  he  was  ordered.  The  boy  superintended  the 
raising  of  two  skips  from  the  pit  with  success,  but  on  the  arrival  at  the 
pit's  mouth  of  a  third,  containing  four  men,  he  was  unable  to  stop 
the  engine,  and  the  skip  being  drawn  over  the  pulley,  the  deceased, 
who  was  one  of  the  men,  was  thrown  down  into  the  shaft  of  the  pit 
and  killed  on  the  spot. 

It  appeared  that  the  engine  could  not  be  stopped  "  in  consequence 
of  the  slipper  being  too  low,"  an  error  which  it  was  proved  that  any 
competent  engineer  could  have  rectified,  but  which  the  boy  in  charge 
of  the  engine  could  not. 

Huddlesto?!,  for  the  prisoner,  contended  that  a  mere  omission  or 
neglect  of  duty  could  not  render  a  man  guilty  of  manslaughter,  and 
he  cited  the  cases  of  Rex  v.  Green,  7  C.  &  P.  156,  and  Rex  v.  Allen, 
7  C.  &  P.  153. 

Lord  Campbell,  C.  J.  I  am  clearly  of  opinion  that  a  man  may, 
by  a  neglect  of  duty,  render  himself  liable  to  be  convicted  of  man- 
slaughter, or  even  of  murder.^  Verdict,   Guilty. 


REGINA  V.   SMITH. 
Carlisle  Assizes.     1869. 

[Reported  11  Cox  C.  C.  210.]. 

Thomas  Smith  was  indicted  for  the  manslaughter  of  Richard  Gibson, 
at  Dearham,  on  the  8th  of  February,  1869,  under  the  following  circum- 
stances :  — 

1  Ace.  Reg.  V.  Hughes,  7  Cox  C.  C.  301.  —  Ed. 


i 


SKCT.  III.]  REGIXA   V.    NICIIOLLS.  193 

The  prisoner  was  employed  by  a  Mr.  Harrison,  an  extensive  colliery 
proi)rietor  near  Dearhaiii,  and  who  was  also  the  owner  of  a  tramway 
which  crossed  the  Maryport  and  Carlisle  turnpike  road.  It  was  the 
prisoner's  duty  to  give  warning  to  any  persons  when  any  trucks  might 
cross  the  said  road.  The  tramway  was  in  existence  before  the  road, 
and  in  the  act  by  which  the  road  was  made  there  was  no  clause  impos- 
ing on  Mr.  Harrison  the  duty  of  placing  a  watchman  where  the 
tramway  crossed  the  road.  On  the  <Sth  of  February,  180!),  the  deceased 
was  crossing  the  tramway,  having  received  no  warning  that  any  trucks 
were  about  to  cross  the  road.  As  he  was  crossing,  however,  he  was 
knocked  down  by  some  trucks  and  was  killed.  On  inquiry  it  appeared 
that  the  prisoner  was  absent  from  his  post  at  that  time,  although  he 
had  strict  orders  never  to  be  al)sent. 

Cdmphdl  Foftter,  for  the  prisoner,  contended  that,  it  being  an 
act  of  omission  such  omission  ought  to  have  been  stated  in  the 
indictment. 

The  learned  judge  [Lrsii,  J.]  held  that  under  the  words  "  did 
feloniously  kill  and  slay  "  it  was  unnecessary  to  state  in  the  indict- 
ment that  it  was  an  act  of  omission  on  the  part  of  the  prisoner  which 
caused  the  death  of  the  deceased. 

Campbell  Foster  then  contended  that  the  facts  of  the  case  disclosed 
no  duty  between  the  prisoner  and  the  public. 

lu  this  the  learned  judge  concurred,  saying  that,  there  being  no 
clause  in  the  act  compelling  Mr.  Harrison  to  place  a  watchman  where 
the  tramway  crossed  the  road,  the  prisoner  was  merely  the  private  ser- 
vant of  Mr.  Harrison  ,  and  that  consequently  his  negligence  did  not 
constitute  such  a  breach  of  duty  as  to  make  him  guilty  of  manslaughter. 

Prisoner  discharged. 


BEGINA   V.   NICHOLLS. 
Stafford  Assizes.     1875.  ^ 

[Reported  13  Cox  C.  C.  7.5] 

Prisotrr  was  indicted  for  the  manslaughter  of  Charles  Xicholls. 

A.   Yoimg  prosecuted. 

The  prisoner  was  the  grandmother  of  the  deceased,  an  infant  of 
tender  years,  said  to  have  died  from  the  neglect  of  the  prisoner  to 
supply  it  with  proper  nourishment.  vShe  was  a  poor  woman,  and  in 
order  to  earn  her  livelihood  was  out  the  greater  part  of  the  day.  Tlie 
deceased  was  the  child  of  the  prisoner's  daughter.  The  daughter  was 
dead,  and  therefore  the  prisoner  took  charge  of  the  child,  and  wliile 
away  from  home  left  it  to  the  sole  care  of  a  boy  of  nine  years.  The 
cause  of  death  was  emaciation,  probably  resulting  from  want  of  food 

13 


194  KEGINA   V.   KICHOLLS.  [CHAF.  VI. 

The  facts  will  be  found  more  particular!}'  stated  in  the  summing  up  of 
the  learned  judge. 

At  the  close  of  the  case  for  the  prosecution,  Brett,  J,,  asked  what 
was  the  neglect  charged. 

A.  Young.  Leaving  the  child  in  the  sole  custod}'  of  so  young  a  boy 
during  many  hours  of  the  da\'. 

Brett,  J.,  to  the  jur}'.  This  woman  is  charged  with  manslaughter 
under  somewhat  peculiar  circumstances.  She  was  the  grandmother  of 
the  deceased  infant,  and  not  bound  by  law  to  take  care  of  it.  She 
might  have  sent  the  child  to  the  workhouse,  but  did  not  do  so.  If  a 
grown  up  person  chooses  to  undertake  the  charge  of  a  human  creature, 
helpless  either  from  infanc}',  simplicit}',  lunacj',  or  other  infirmit}',  he  is 
bound  to  execute  that  charge  without,  at  all  events,  vncked  negligence ; 
and  if  a  person  who  has  chosen  to  take  charge  of  a  helpless  creature 
lets  it  die  by  wicked  negligence,  that  person  is  guilt}-  of  manslaughter. 
Mere  negligence  will  not  do ;  there  must  be  wicked  negligence,  that  is, 
negligence  so  great  that  you  must  be  of  opinion  that  the  prisoner  had 
a  wicked  mind,  in  the  sense  that  she  was  reckless  and  careless  whether 
the  creature  died  or  not.  We  must  judge  of  all  these  things  according 
to  the  state  and  condition  of  the  persons  concerned.  Here  was  an  old 
woman  left  in  a  difficult  position.  The  child  was  probably  illegitimate. 
Its  mother,  who  was  the  prisoner's  daughter,  had  died,  and  would  not 
probably  have  suckled  it  for  some  days  before  her  death.  The  child 
was  small  and  weakly.  It  might,  perhaps,  have  lived.  What,  however, 
was  the  prisoner  to  do?  It  is  said  that  she  had,  through  her  own  mis- 
conduct, fallen  into  bad  circumstances  ;  that  she  was  addicted  to  drink, 
and  that  her  furniture  had  been  seized.  She  was  out  all  day  collecting 
rags  and  bones.  What  ought  she  to  have  done  with  respect  to  the 
child  ?  The  prosecution  say  that  she  ought  to  have  sent  it  to  the  parish 
authorities.  Perhaps  she  ought.  But  she,  like  others,  might  be  full  of 
pi-ejudice,  and  dislike  to  send  it  there.  So  her  omission  to  send  it  is 
not  sufficient ;  for,  as  I  have  pointed  out,  there  must  be  wicked  negli- 
gence on  her  part.  Then  she  must  go  out  to  work.  She  could  not  find 
any  one  else,  for  she  had  no  means,  so  she  got  a  son  of  nine  years  old 
to  look  to  the  infant.  She  may  have  been  very  careless,  but  the  ques- 
tion is,  was  she  wickedly  careless?  She  was  in  fault,  for  she  ought  not 
to  have  been  away  so  many  hours  at  a  time ;  and  no  doubt  you  wiU 
think  that  it  was  that  that  caused  the  death  of  the  child.  The  boy  was 
careless,  but  it  appears  that  the  old  woman  certainly  did  have  food  in 
the  house.  Suppose  she  told  the  boy  to  feed  the  baby,  and  left  food 
wherewith  to  feed  it  ?  Still  she  would  be  careless,  for  she  ought  to 
have  returned  home  to  see  that  he  did  so.  It  is  very  right  that  this 
case  should  be  inquired  into,  and  that  the  neighbors  should  look  into 
it,  but  nevertheless  it  is  right  that  we  should  consider  the  circumstances 
of  the  prisoner  in  order  to  determine  whether  she  has  been  guilty  of 
such  carelessness  as  I  have  defined. 

VerdAct,  Not  guilty. 


SECT.  III.]  REGINA   V.   DOWNES.  106 

REGINA  V.   DOWNES. 
Crown  Case  Rkservkd.     1875. 

[Reported  13  Cux  C.  C.  111.] 

Case  reserved  for  the  opinion  of  this  court  by  Blackburn,  J.* 

1.  The  prisoner  was  indicted  at  the  Central  Criminal  Court  for  the 
manslaughter  of  Charles  Downes. 

2.  It  appeared  on  the  trial  before  me  b}'  the  evidence  that  Charles 
Downes  was  an  infant  who,  at  the  time  of  his  death,  was  a  little  more 
than  two  \-ears  old.  The  child  had  been  ill,  and  wasting  awa}'  for 
eight  or  nine  months  before  its  death.  The  prisoner,  who  resided  at 
Woolwich,  was  the  father  of  the  deceased,  and  had  during  the  whole  of 
this  time  the  custody  of  the  child. 

3.  The  prisoner  was  one  of  a  sect  who  call  themselves  "  The  Peculiar 
People." 

4.  During  the  whole  period  of  the  child's  illness  he  did  not  procure 
any  skilled  advice  as  to  the  treatment  of  the  child,  but  left  it  to  the 
charge  of  women  who  belonged  to  his  sect,  and  called  in  at  inter- 
vals George  Hurry,  an  engine  driver,  who  prayed  over  the  child  and 
anointed  it  with  oil. 

5.  The  reason  of  this  course  of  conduct  was  explained  by  George 
Hurry,  who  was  called  as  a  witness. 

6.  He  stated  that  the  Peculiar  People  never  called  in  medical  advice 
or  gave  medicines  in  case  of  sickness.  They  had  religious  objections 
to  doing  so.  They  called  in  the  elders  of  the  church,  who  prayed  over 
the  sick  person,  anointing  him  with  oil  in  the  name  of  the  Lord.  This 
he  said  they  did  in  literal  compliance  with  the  directions  in  the  14th 
and  loth  verses  of  the  fifth  chapter  of  the  Epistle  of  St.  James,  and  in 
hope  that  the  cure  would  follow. 

7.  This  course  was  pursued  with  regard  to  the  deceased  infant  during 
its  illness.  The  prisoner  consulted  the  witness  Hurry  as  to  what  was 
the  matter  with  the  child,  and  as  to  what  should  be  given  to  it.  Tliey 
thought  it  was  suffering  from  teething  ;  and  he  advised  the  parents  to 
give  it  port  wine,  eggs,  arrowroot,  and  other  articles  of  diet  which  he 
thought  suitable  for  a  child  suffering  from  such  a  complaint,  all  of  which 
were  supplied  accordingly.  There  was  no  evidence  that  this  treatment 
was  mischievous,  and  though  this  was  pi'obably  not  logically  consistent 
with  the  doctrines  of  liis  sect  as  described  by  him,  I  saw  no  reason  to 
doubt  that  it  was  all  done  in  perfect  sincerit}'. 

10.  It  was  admitted  on  the  part  of  the  prosecution  that  the  child 
was  kindly  treated,  kept  clean,  and  furnished  with  sudicient  food,  and 
nursed  kindly  by  the  mother  and  the  women  of  the  sect. 

*  Part  of  the  statement  of  the  case,  argument  of  counsel,  and  the  opinion  of  Mellob, 
J.,  are  omitted. 


196  REGINA   V.   DOWNES.  [CIIAP.  YI. 

11.  Evidence  was  then  given  that  the  prisoner  bad  sufficient  means 
to  procure  sliilled  advice,  whicli  was  easily  to  be  obtained  at  Woolwich. 
That  neither  he  nor  the  elder  had  any  corapetent  skill.  The  disease  of 
which  the  child  died  having  nothing  whatever  to  do  with  teething,  but 
being  chronic  inflammation  of  the  lungs  and  pleura,  which  was  of  long 
standing,  and  was  a  disease  which  might  have  been  cured  at  any  time 
if  competent  advice  had  been  obtained,  probably  though  not  certainl}', 
would  have  been  so  cured,  if  the  advice  had  been  called  in  in  the  earh' 
stages  of  the  complaint. 

12.  The  prisoner  in  his  own  defence  said  that  he  sincerely-  believed 
that  by  abstaining  from  calling  in  medical  aid  he  gave  the  child  the 
best  chance  of  recover}-,  as,  if  he  showed  a  want  of  faith  he  thought  he 
could  not  rel}'  on  the  promise  which  he  thought  was  given. 

13.  The  prisoner  had  no  counsel. 

15.  I  told  the  jury  that  the  law  casts  on  the  father  who  has  the 
custody  of  a  helpless  infant  a  duty  to  provide  according  to  his  abilit}'' 
all  that  is  reasonabl}-  necessary  for  tlie  child,  including,  if  the  child  is 
so  ill  as  to  require  it,  the  advice  of  persons  reasonabh-  believed  to  have 
competent  medical  skill,  and  that  if  death  ensues  from  the  neglect  of 
this  duty  it  is  manslaughter  in  the  father  neglecting  the  dut}'. 

I  told  them  that  I  did  not,  as  at  present  advised,  think  it  any  defence 
that  the  prisoner  sincerely  believed  that  he  ought  not  to  provide  such 
advice,  nor  that  he  believed  that  he  was  doing  the  best  for  the  child 
if  he  had  not,  in  fact,  competent  skill  and  knowledge  himself.  After 
explaining  this  more  fully  I  asked  the  jur}-  four  questions  which  to 
prevent  any  risk  of  mistake,  I  reduced  to  writing  and  handed  to  them. 
They  answered  all  in  the  affirmative. 

16.  The  following  is  a  copy  of  the  writing  I  handed  to  the  jury  and 
their  answers. 

Did  the  prisoner  neglect  to  procure  medical  aid  for  the  helpless 
infant  when  it  was  in  fact  reasonable  so  to  do,  and  he  had  the  ability? 
—  Yes. 

"Was  the  death  caused  by  that  neglect  ?  —  Yes. 

Unless  both  of  these  are  proved  he  is  not  guilt}*.  If  both  proved 
find  him  guilty,  but  then  say  further, 

Did  the  prisoner  bo7id  fide,  though  erroneously,  believe  that  medical 
advice  was  not  required  for  the  child?  —  Yes. 

Or  bond  fide  beheve  that  it  was  wrong  to  call  in  medical  aid?  —  Yes. 

I  thereupon  directed  the  verdict  of  guilty  to  be  entered,  and  admitted 
the  prisoner  to  bail. 

The  question  for  the  opinion  of  this  court  is  whether  the  conviction 
so  obtained  on  this  direction  and  those  findings  should  stand  or  be  set 
aside.  Colin  Blackburn. 

No  counsel  was  instructed  to  argue  for  the  prisoner. 

D.  Straight,  for  the  prosecution.  The  31  &  32  Vict.  c.  122,  s.  37, 
makes  it  an  offence  for  a  parent  wilfully  to  neglect  to  provide  adequate 
food,  clothing,  medical  aid,  or  lodging  for  a  child  under  fourteen  years 


SECT.  III.]  REGINA   V.    DOWNES.  107 

of  age  in  his  custody  whereby  the  health  of  the  child  is,  or  has  been,  or 
is  likely  to  be  seriously  injured.  [Mellor,  J.  The  words  of  the  sec- 
tion "wilfully  neglect"  mean  intentionally  or  purposely  omit  to  call 
in  medical  aid.  Loud  Coi.kuiuoe,  C.  J.  In  Keg.  v.  Wagstalfe,  10  Cox 
C.  C.  530,  an  indictment  for  manslaughter  against  parents  of  the  same 
religious  sect  as  the  prisoner  in  this  case  for  neglecting  to  pnnide 
medical  aid  for  the  child,  who  died  in  consequence  of  such  neglect, 
"Willes,  J.,  upon  similar  facts,  seems  to  have  been  of  opinion  that  the 
indictment  could  not  be  sustained,  but  that  was  before  the  31  &  32 
Vict.  c.  122,  s.  37,  passed.  And  in  the  case  of  Keg.  ;-.  Hines/  before 
Pigott,  B.,  that  statute  was  not  brought  to  his  attention.] 

Coleridge,  C.  J.  I  think  that  this  conviction  should  be  atfirmcd. 
For  my  own  part,  but  for  the  statute  31  &  32  Vict,  c  122,  s.  37, 1  should 
have  much  doubt  about  this  case,  and  should  have  desired  it  to  be  further 
argued  and  considered.  Perhaps  it  is  enough  to  say  that  the  oi)inions 
of  Willcs,  J.,  and  Pigott,  B.,  are  deserving  of  grave  consideration.  The 
statute  31  &  32  Vict.  c.  122,  s.  37,  however,  is  a  strong  argument  in 
favor  of  the  conviction.     By  that  enactment  it  is  made  an  otTence  pun- 

i  Keg.  V.  Hincs  was  an  imUctinent  against  Hines  for  unlawfully  eiitlaugeriug  the 
life  of  his  child,  aged  two  years,  by  omitting  to  provide  proper  and  sufficient  medicine. 
At  the  opening  of  the  case,  Baion  Pigott  expressed  a  very  strong  opinion  that  it  could 
not  be  sustained.  Mr.  Poland  referred  to  Russell  on  Crimes,  p.  80,  to  the  case  of  Keg. 
V.  Smith,  8  C.  &  P.,  and  to  Reg.  v.  Hurry,  Central  Criminal  Court  lieiwrts,  vol.  76, 
p.  63.  After  hearing  the  evidence  in  the  case,  and  Mr.  Poland  in  support  of  it,  Pigott, 
B.,  said,  "  I  am  of  opinion  that  there  is  no  case  to  go  to  the  jury  of  any  crime  ;  I 
think  it  is  one  of  those  cases  in  which  a  parent,  instead  of  being  guilty  of  anything 
like  culpable  negligence,  has  done  everything  that  he  believed  to  be  necessary  for  the 
good  of  his  child.  That  he  may  be  one  of  those  persons  who  have  very  perverted  views 
and  very  superstitious  views,  and  may  be  altogether  mistaking  that  doctrine  of  Scripture 
from  which  he  has  taken  his  course  of  proceeding  in  this  case,  may  be  perfectly  true  ; 
but  that  there  is  anything  in  the  nature  of  a  duty  neglected,  that  is,  a  duty  which  he 
believed  or  knew  to  be  such,  in  this  instance,  I  am  clearly  of  opinion  the  evidence  does 
not  show.  On  the  contrary,  he  believed  his  duty  to  be  in  the  direction  in  which  he 
acted,  and  he  carried  out  that  duty  to  the  utmost  of  his  ability.  He  may  altogether 
have  mistaken  what  his  duty  was  ;  still  I  believe  it  was  an  honest  mistake.  It  may  be 
an  ignorant  mistake,  in  all  probaliility  it  is  the  result  of  ignorance  and  superstition, 
but  certainly  there  is  not  a  trace  of  anything  like  an  intentional  omission  of  duty  or  a 
culpable  omission  of  duty  within  the  meaning  of  that  expression  as  used  in  the  criminal 
law.  I  am  clearly  of  opinion  that  it  is  not  a  case  for  an  indictment,  nor  a  case  for  a 
judge  to  deal  with  in  a  Criminal  Court.  If  the  Legislature  (as  they  have  done  in 
dealing  with  the  case  of  the  prevention  of  small  pox\  are  minded  to  pass  a  law  on  the 
subject,  that  is  a  different  matter,  and  it  would  be  quite  right  then  that  persona  sliould 
be  compelled  to  conform  to  it,  although  they  themselves  may  ])ersonally  object  to  it, 
because  it  is  the  law  of  the  society  in  which  they  live,  and  they  are  bound  by  that  law 
if  society  chooses  to  enact  it.  But  I  am  clearly  of  opinion  that  no  judge  sitting  in  a 
Criminal  Court,  without  any  direction  or  enactment  of  the  Legislature,  would  be  justi- 
fied in  saying  that  a  parent  who  exercised  his  best  judgment,  though  a  perverted  one. 
in  dealing  with  his  child  by  nursing  and  care  instead  of  calling  in  a  doctor  to  apply 
blistei-s,  leaches,  and  calomel,  was  guilty  of  criminal  negligence.  I  may  say  that  I  had 
an  opportunity  before  coming  into  court,  knowing  that  this  case  was  coming  on,  of 
speaking  of  it  to  Mr.  Justice  Quaiu,  and  the  learned  Recorder,  and  they  ipiite  concm 
iu  the  view  I  have  propounded  and  upon  which  1  am  acting." 


198  REGINA   V.   INSTAN.  [CHAP.  VI. 

ishable  summarily  if  any  parent  wilfully'  neglects  to  provide  (inter  alia) 
medical  aid  for  his  child  being  in  his  custody  under  the  age  of  fourteen 
years,  whereby  the  health  of  such  child  shall  have  been  or  shall  be 
likely  to  be  seriously  injured.  That  enactment  I  understand  to  mean 
that  if  any  parent  intentionally,  i.  e.,  with  the  knowledge  that  medical 
aid  is  to  be  obtained,  and  with  a  deliberate  intention  abstains  from  pro- 
viding it,  he  is  guilt}-  of  an  offence.  Under  that  enactment  upon  these 
facts  the  prisoner  would  clearly  have  been  guilty  of  the  offence  created 
l)y  it.  If  the  death  of  a  person  results  from  the  culpable  omission  of  a 
breach  of  dut}'  created  b}'  the  law,  the  death  so  caused  is  the  subject  of 
manslaughter.  In  this  case  there  was  a  dut}'  imposed  by  the  statute 
on  the  prisoner  to  provide  medical  aid  for  his  infant  child,  and  there 
was  the  deliberate  intention  not  to  oh(i.\  the  law  ;  whether  proceeding 
from  a  good  or  bad  motive  is  not  material.  The  necessary  ingredient 
to  constitute  the  crime  of  manslaughter  existed,  therefore,  in  this  case ; 
and  for  that  reason  this  conviction  ought  to  be  affirmed. 

Bramwell,  B.  I  am  of  the  same  opinion.  The  31  &  32  Vict.  c.  122, 
s.  37,  has  imposed  a  positive  and  absolute  dut}'  on  parents,  whatever 
their  conscientious  or  superstitious  opinions  ma^'  be,  to  provide  medical 
aid  for  their  infant  children  in  their  custody.  The  facts  show  that  the 
prisoner  thought  it  was  irreligious  to  call  in  medical  aid,  but  that  is  no 
excuse  for  not  obeying  the  law. 

Mellor  and  Grove,  JJ.,  and  Pollock,  B.,  concurred. 

Conviction  aj^rmed. 


REGINA  V.   INSTAN. 
Crown  Case  Reserved.     1893. 

[Reported  [1893]  1  Q.  B.  450.] 

Case  stated  by  Day,  J. 

Kate  Instan  was  tried  before  me  at  the  last  assizes  for  the  county  of 
Worcester  upon  a  charge  of  feloniously  killing  one  Ann  Hunt.  The 
prisoner,  who  is  between  thirty  and  forty  years  of  age  and  unmarried, 
bad  no  occupation  and  no  means  of  her  own  of  living.  She  was  a 
niece  of  the  deceased. 

At  the  time  of  the  committal  of  the  alleged  offence,  ^nd  for  some 
time  previous  thereto,  she  had  been  living  with  and  had  been  main- 
tained by  the  deceased.  Deceased  was  a  woman  of  some  seventy- 
three  years  of  age,  and  until  a  few  weeks  before  her  death  was  health}' 
and  able  to  take  care  of  herself.  She  was  possessed  of  a  small  life 
income,  and  had  in  the  house  in  which  she  lived  some  little  furnituie, 
and  a  few  other  articles  of  trifling  value.  The  two  women  lived  to- 
gether in  a  house  taken  by  the  deceased ;  no  one  lived  with  them  or 
in  any  way  attended  to  them. 


SECT.  HI.]  REGINA   V.   INSTAN.  199 

The  deceased  shortly  before  hur  death  snfTered  from  gangrene  in 
the  leg,  whieh  rendered  her  (Uirhig  the  last  ten  days  of  her  Hfi;  qirile 
unal)le  to  attend  to  herself  or  to  move  about  or  to  do  anything  to  pro- 
cure assistance.  No  one  but  the  prisoner  had  previous  to  the  death 
an}'  knowledge  of  the  eondition  in  which  her  aunt  thus  was.  The 
prisoner  continued  to  live  in  the  house  at  the  cost  of  the  deceased, 
and  took  in  the  food  supplied  by  the  tradespeople ;  but  does  not 
appear  to  have  given  any  to  the  deceased,  and  she  certainly  did  not 
give  or  procure  any  medical  or  nursing  attendance  to  or  for  her,  or 
give  notice  to  any  neighbor  of  her  condition  or  wants,  although  she 
had  abundant  opportunity  and  occasion  to  do  so. 

The  body  of  the  deceased  was  on  August  2,  while  the  prisoner  was 
still  living  in  the  house,  found  much  decomposed,  partially  dressed  in 
her  day  clothes,  and  lying  partly  on  the  ground  and  partly  prone  upon 
the  bed.  The  death  probably  occurred  from  four  to  seven  days  before 
August  3,  the  date  of  the  post-mortem  examination  of  the  liody.  The 
cause  of  death  was  exhaustion  caused  by  the  gangrene,  but  sulistan- 
tially  accelerated  by  neglect,  want  of  food,  of  nursing,  and  of  medical 
attendance  during  several  days  previous  to  the  death.  All  these  wants 
could  and  would  have  been  supplied  if  any  notice  of  the  condition  of 
the  deceased  had  been  given  by  the  prisoner  to  any  of  the  neighbors, 
of  whom  there  were  several  living  in  adjoining  houses,  or  to  the  rela- 
tions of  the  deceased,  who  lived  within  a  few  miles.  It  was  proved 
that  the  prisoner,  while  the  deceased  must  have  been  just  about  dying, 
had  conversations  with  neighbors  about  the  deceased,  but  did  not 
avail  herself  of  the  opportunities  thus  atforded  of  disclosing  the  con- 
dition in  which  she  then  was. 

At  the  close  of  the  case  it  was  objected  on  behalf  of  the  prisoner 
that  there  was  no  evidence  of  any  legal  duty  such  as  would  bind  the 
prisoner  to  give  or  to  procure  any  food,  or  nursing,  or  attendance  to 
or  for  the  deceased,  or  to  give  any  notice  to  any  one  that  such  was 
required.  I  thought  it  better  not  to  stop  the  case,  but  to  leave  it  to 
the  jury  to  say  whether,  having  regard  to  the  circumstances  under 
which  the  prisoner  lived  with  the  deceased,  and  continued  to  occupy 
the  house,  and  to  take  the  food  provided  at  the  expense  of  the  de- 
ceased, while  the  deceased  was,  as  she  knew,  unable  to  communicate 
with  any  other  person  and  thus  to  procure  necessaries  for  herself,  the 
prisoner  did  or  did  not  impliedly  undertake  with  the  deceased  either  to 
wait  upon  and  attend  to  her  herselt^  or  to  communicate  to  persons  out^ 
side  the  house  the  knowledge  of  her  helpless  condition  ;  and  I  told 
them  that  if  they  came  to  the  conclusion  that  she  did  so  undertake, 
and  that  the  death  of  the  deceased  was  substantially  accelerated  by 
her  failure  to  carry  out  such  undertaking,  they  might  find  the  prisoner 
guilty  of  manslaughter,  but  that  otherwise  they  should  acquit  her. 
Tlie  jury  found  the  prisoner  guilty. 

11  the  facts  above  stated  do  not  nlTord  evidence  of  the  existence  of 
:inv  such  undertaking  or  duty,  then  the  conviction  is  to  be  (iuashcd  j 
if  utlierwise.  it  is  to  stand. 


200  REGINA  V.   INST  AN.  [cHAP.  VT. 

Vachell,  for  the  prisoner.  There  was  no  legal  duU'  imposed  upon 
the  prisoner  to  provide  food  or  attendance  for  the  deceased  during  the 
last  ten  days  of  her  Ufe  ;  tliere  was  certainly  no  such  duty  before  that 
time,  for  the  deceased  was  the  head  of  the  household  and  able  to  help 
herself.  Such  a  duty  as  is  here  sought  to  be  enforced  can  only  arise 
by  virtue  of  a  statute  or  a  contract,  or  at  common  law.  It  must  be 
conceded  that  there  was  no  statutory  duty,  neither  was  there  any  duty 
at  common  law  ;  there  is  no  authority  for  the  existence  of  any  such 
common  law  duty  in  the  case  of  a  person  of  full  age ;  in  such  a  case 
the  duty  can  only  arise  in  respect  of  an  undertaking,  express  or  im- 
i)]ied.  In  Rex  v.  P^riend  it  was  held  to  be  an  indictable  offence  to 
refuse  or  neglect  to  provide  sufficient  food,  bedding,  &c.,  to  an  infant 
of  tender  years,  unable  to  provide  for  and  take  care  of  itself,  whom  a 
man  was  obliged  by  duty  or  contract  to  provide  for ;  but  the  decision 
was  in  terms  confined  to  such  cases,  and  the  indictment  was  held  to 
be  defective  in  not  stating  the  child  to  be  of  tender  years  and  unable 
to  provide  for  itself.  In  Reg.  v.  Shepherd  it  was  held  that  there 
was  no  duty  upon  a  woman  to  procure  a  midwife  for  her  daughter,  a 
girl  of  eighteen,  and  that  she  could  not  be  convicted  of  manslaughter 
for  omitting  to  do  so.  In  his  judgment,  Erie,  C  J.,  says:  "Here  the 
girl  was  beyond  the  age  of  childliood,  and  was  entirely  emancipated." 
In  the  case  of  a  person  of  full  age  such  a  duty  may  indeed  arise  out 
of  an  express  or  implied  undertaking:  Reg.  v.  Marriott,  where  a 
man  was  convicted  of  the  manslaughter  of  an  elderly  and  infirm 
woman,  whom  he  had  taken  home  to  live  in  his  house,  promising  to 
make  her  happy  and  comfortable.  In  summing  up  in  that  case,  Pat- 
teson,  J.,  said :  "  The  cases  which  have  happened  of  this  description 
have  been  generally  cases  of  children  and  servants,  where  the  duty 
was  apparent.  This  is  not  such  a  case  ;  but  it  will  be  for  you  to  say 
whether,  from  the  way  in  which  the  prisoner  treated  her,  he  had  not 
by  way  of  contract,  in  some  vvay  or  other,  taken  upon  him  the  per- 
formance of  that  duty  which  she,  from  age  and  infirmity,  was  inca- 
pable of  doing."  In  the  present  case  there  was  no  evidence  of  any 
contract  or  undertaking  by  the  prisoner  to  take  care  of  her  aunt, 
though  no  doubt  she  was  under  a  moral  obligation  to  do  so. 

[Hawkins,  J.  Why  should  not  a  contract  be  implied  from  such  cir- 
cumstances as  those  in  this  case  ?  Suppose  two  people  agreed  to  live 
together  for  their  mutual  benefit,  would  not  the  mere  fact  of  their  living 
together  be  evidence  from  which  an  undertaking  might  be  implied?] 

[Cavk,  J.  When  the  prisoner  took  in  food  paid  for  with  the  de- 
ceased's money,  she  had  no  right  to  apply  it  all  for  her  own  use.  Did 
she  not  then  undertake  a  duty  towards  the  deceased  ?] 

Not  by  way  of  contract  so  as  to  raise  a  legal  duty ;  it  was  nothing 
more  than  a  duty  of  imperfect  obligation. 

Lord  Colekidgk,  C.  J.  We  are  all  of  opinion  that  this  conviction 
must  be  affirmed.  It  would  not  be  correct  to  say  that  every  moral 
obligation  involves  a  legal  duty  ;  but  every  legal  duty  is  founded  on  a 


SECT.  IV.]  ANONYMOUS.  201 1 

moral  obligation.  A  legal  common  law  duty  is  nothing  else  than  the 
enforcing  by  law  of  that  which  is  a  moral  obligation  without  legal 
enforcement.  There  can  be  no  <iiiestion  in  this  case  that  it  was  the 
clear  duty  of  the  prisoner  to  impart  to  the  deceased  so  much  as  was 
necessary  to  sustain  life  of  the  food  which  she  from  time  to  time  took 
in,  and  which  was  paid  for  by  the  deceased's  own  money  for  the  pur- 
pose of  the  maintenance  of  herself  and  the  prisoner  ;  it  was  only 
through  the  instrumentality  of  the  prisoner  that  the  deceased  could 
get  the  food.  There  was,  therefore,  a  common  law  duty  imposed  upon 
the  prisoner  which  she  did  not  discharge. 

Nor  can  there  be  any  question  that  the  failure  of  the  prisoner  to  dis- 
charge her  legal  duty  at  least  accelerated  the  death  of  the  deceased,  if 
it  did  not  actually  cause  it.  There  is  no  case  directly  in  point ;  but  it 
■would  be  a  slur  upon  and  a  discredit  to  the  administration  of  justice  in 
this  country  if  there  were  any  doubt  as  to  the  legal  principle,  or  as  to 
the  present  case  being  within  it.  The  prisoner  was  under  a  moral 
obligation  to  the  deceased  from  which  arose  a  legal  duty  towards  her ; 
that  legal  duty  the  prisoner  has  wilfully  and  deliberately  left  unper- 
formed, with  the  consequence  that  there  has  been  an  acceleration  of 
the  death  of  the  deceased  owing  to  the  non-performance  of  that  legal 
dut}'.  It  is  unnecessary  to  say  more  than  that  upon  the  evidence  this 
conviction  was  most  properly  arrived  at. 

Hawkins,  Cave,  Day,  and  Collins,  JJ.,  concurred. 

Coiwict ion  affirmed . 


SECTION  IV. 

Constructive  Intent. 

(a)  General  Intent. 

ANONYMOUS. 
Reporters'  Note.     1498. 

[Reported  Year-Rook,  13  Hen.  VII.  14,  pi  5.] 

Husseij  said  that  a  question  had  been  put  to  him,  which  was  this: 
A  clerk  of  a  church  being  in  a  chamber  struck  another  with  the  keys 
of  the  church  ;  which  with  the  force  of  the  blow  flew  out  of  his  hand 
and  through  a  window,  and  put  out  the  eye  of  a  woman.  The  question 
was,  whether  it  should  be  called  maihem  or  not.  And  it  seems  that  it 
was,  because  he  had  a  bad  intent  at  the  beginning  ;  but  it  should  be  well 
considered  in  assessing  the  damacres. 


202  KEGINA  V.   BRUCE.  [cHAP.  VL 

REX   y.  BLACKHAM. 
Crown  Case  Reserved.    1787. 

[Reported  2  East,  Pleas  of  the  Crown,  711.] 

Blackham  assaulted  a  woman  with  intent  to  commit  a  rape,  and  she 
•without  any  demand  from  him  offered  him  money,  which  the  prisoner 
took  and  put  into  his  pocket,  but  continued  to  treat  her  with  violence 
to  effect  his  original  purpose  till  lie  was  interrupted  by  the  approach  of 
another  person.  This  was  holden  to  be  robbeiy  by  a  considerable 
majority  of  the  judges  ;  for  the  woman,  from  violence  and  terror  occa- 
sioned by  the  prisoner's  behavior,  and  to  redeem  her  chastity,  offered 
the  money,  which  it  was  clear  she  would  not  have  given  voluntaril}' ; 
and  the  prisoner,  b}'  taking  it,  derived  that  advantage  to  himself  from 
his  felonious  conduct ;  though  his  original  intent  were  to  commit  a  rape. 


REGINA  V.  BRUCE. 
Central  Criminal  Court.    1847. 

[Reported  2  Cox  C.  C.  262.] 

The  prisoner  was  indicted  for  manslaughter,  under  the  circumstances 
detailed  b}-  one  of  the  witnesses.  He  said  the  prisoner  came  into  his 
master's  shop,  and  pulled  him  hy  the  hair  off  a  cask  where  he  was  sit- 
ting, and  shoved  him  to  the  door,  and  from  the  door  back  to  the  counter. 
That  the  prisoner  then  put  his  arm  round  his  neck  and  spun  liim  round, 
and  thej'  came  together  out  of  the  shop;  the  prisoner  kept  "hold  of 
the  witness  when  the}'  were  outside,  and  kept  spinning  him  round  ;  the 
latter  broke  awa}'  from  him,  and,  in  consequence  and  at  the  moment  of 
his  so  doing,  he  (the  prisoner)  reeled  out  into  the  road  and  knocked 
against  a  woman  who  was  passing  and  knocked  her  down.  The  prisoner 
was  veiy  drunk,  and  staggered  as  he  walked." 

The  woman  so  knocked  down  died  shortly  afterwards  of  the  injuries 
she  had  received,  and  it  was  for  having  caused  her  death  that  the  pris- 
oner was  indicted. 

Mr.  Justice  Erle  inquired  of  the  witness  (a  young  lad)  whether  he 
resisted  the  prisoner  during  the  transaction.  The  lad  answered  that  he 
did  not ;  he  thought  the  prisoner  was  only  playing  with  him,  and  was 
sure  tluit  it  was  intended  as  a  joke  throughout. 

Erle,  J.  (to  the  ]\xxy).  I  think,  upon  this  evidence,  3'ou  must  acquit 
the  prisoner.  Where  the  death  of  one  person  is  caused  by  the  act  of 
another,  while  the  latter  is  in  pursuit  of  an}-  unlawful  object,  the  person 
so  killing  is  guilty  of  manslaughter,  although  he  had  no  intention  what- 
ever of  injuring  him  w^ho  was  the  victim  of  his  conduct.    Here,  however, 


SECT.  IV.]  REGINA    V.    FRANKLIN.  203 

there  was  nothing  unlawful  in  what  the  prisoner  did  to  this  lad,  and 
which  led  to  the  death  of  the  woman.  Had  his  treatment  of  the  boy 
been  against  the  will  of  the  latter,  the  prisoner  woukl  have  been  com- 
mitting an  assault  —  an  unlawful  act  —  which  would  have  rendered 
him  amenable  to  the  law  for  any  consequences  resulting  from  it ;  but 
as  every  thing  that  was  done  was  with  the  witness's  consent,  there  was 
no  assault,  and  consequently  no  illegality.  It  is,  in  the  eye  of  the  law, 
an  accident,  and  nothing  more. 


REGINA  V.  FRANKLIN. 
Sussex  Assizes.     1883. 

[Reported  15  Cox  C.C.  163] 

Charles  Harris  Franklin  was  indicted  before  Field,  J.,  at  Lewes, 
for  the  manslaughter  of  Craven  Patrick  Trenchard. 

The  facts  were  as  follows : 

On  the  morning  of  the  25th  day  of  July,  1882,  the  deceased  was  bath- 
ing in  the  sea  from  the  West  Pier,  at  Brighton,  and  swimming  in  the 
deep  water  around  it.  The  prisoner  took  up  a  good  sized  box  from 
the  refreshment  stall  on  the  pier  and  wantonly  threw  it  into  the  sea. 
Unfortunately  the  box  struck  the  deceased,  C.  P.  Trenchard,  who  was 
at  that  moment  swimming  underneath,  and  so  caused  his  death. 

Gore,  for  the  prosecution,  urged  that  it  would,  apart  from  the  ques- 
tion of  negligence,  be  sullicient  to  constitute  the  olfcnce  of  luaiibluughter, 
that  the  act  done  by  the  prisoner  was  an  unlawful  act,  which  the  facts 
clearly  showed  it  to  be,  and  cited  the  case  of  Rex  v.  Fenton,  1  Lewin's 
Cr.  Cas.  179.  This  case  is  referred  to  in  1  Russell  on  Crimes,  G38  :  "  U 
death  ensues  in  cousequence  of  a  wrongful  act,  which  the  party  who 
commits  it  can  neither  justify  nor  excuse,  it  is  manslaughter.  An  indict- 
ment charged  that  there  was  a  scaffolding  in  a  certain  coal  mine,  and 
that  the  prisoners,  bj'  throwing  large  stones  down  the  mine,  broke  the 
scaffolding,  and  that  in  consequence  of  the  scaffolding  being  so  broken 
a  corf  in  which  the  deceased  was  descending  the  mine  struck  against  a 
beam  on  which  the  scaffolding  had  been  supported,  and  by  such  striking 
the  corf  was  overturned  and  the  deceased  precipitated  into  the  mine 
and  killed.  Tindal,  C.  J.,  said  :  II death  ensues  as  the  consequence  of  a 
wrongful  act,  which  the  party  who  commits  it  can  neither  justif}-  nor 
excuse,  it  is  not  accidental  death,  but  manslaughter.  If  the  wrongful 
act  was  done  under  circumstances  which  show  an  intent  to  kill  or  do 
any  serious  injury  in  the  particular  case,  or  any  general  malice,  tiie 
offence  becomes  that  of  murder.  In  the  present  instance  the  act  was 
one  of  mere  wantonness  and  sport,  but  still  the  act  was  wrongful .  ii  was 
a  trespass.    The  only  question,  therefore,  is,  whether  the  death  of  the 


204  COMMON^VEALTH   V.    ADAMS.  [CHAP.  VL 

party  is  to  be  fairly  and  reasonably  considered  as  a  consequence  of 
such  wrongful  act.  If  it  followed  from  such  wrongful  act,  as  an  effect 
from  a  cause,  the  offence  is  manslaughter  ;  if  it  is  altogether  unconnected 
with  it,  it  is  accidental  death." 

Field,  J.  This  is  a  question  of  great  importance,  for  if  I  must  follow 
the  ruUng  of  the  very  learned  judge  in  Reg.  v.  Fenton  (iiM  sujyra)  it  will 
be  necessary  to  go  into  the  question  whether  the  prisoner  was  guilty  of 
negligence.     I  will  consult  m\  brother  Mathew  upon  the  point. 

Field,  J.,  after  a  short  interval,  returned  into  court  and  said  :  I  am 
of  opinion  that  the  case  must  go  to  the  juiy  upon  the  broad  ground  of 
negligence,  and  not  upon  the  narrow  ground  proposed  by  the  learned 
counsel,  because  it  seems  to  me  —  and  I  may  say  that  in  this  view  my 
brother  Mathew  agrees  —  that  the  mere  fact  of  a  civil  wrong  committed 
by  one  person  against  another  ought  not  to  be  used  as  an  incident  which 
is  a  necessary  step  in  a  criminal  case.  I  have  a  great  abhorrence  of 
constructive  crime.  "We  do  not  think  the  case  cited  by  the  counsel  for 
the  prosecution  is  binding  upon  us  in  the  facts  of  this  case,  and,  there- 
fore, the  civil  wrong  against  the  refreshment-stall  keeper  is  immaterial 
to  this  charge  of  manslaughter.  I  do  not  think  that  the  facts  of  this 
case  bring  it  clearly  within  the  principle  laid  down  bj'Tindal,  C.  J.,  in 
Reg.  V.  Fenton.  If  I  thought  this  case  was  in  principle  like  that  case 
I  would,  if  requested,  state  a  case  for  the  opinion  of  the  Court  of  Crimi- 
nal Appeal.     But  I  do  not  think  so. 

It  was  not  disputed  that  the  prisoner  threw  the  box  over  the  pier, 
that  the  box  fell  upon  the  bo}',  and  the  death  of  the  boy  was  caused  by 
the  box  falling  upon  him. 

Gill^  for  the  prisoner,  relied  upon  the  point  that  there  was  not  proved 
such  negligence  as  was  criminal  negligence  on  the  part  of  the  prisoner. 

Field,  J.,  in  summing  up  the  case  to  the  juiy,  went  carefully  through 
the  evidence,  pointing  out  how  the  facts  as  admitted  and  proved  affected 
the  prisoner  upon  the  legal  question  as  he  had  explained  it  to  them. 

The  jury  returned  a  verdict  of  guilty  of  manslaughter.  Guilty.. 

The  prisoner  was  sentenced  to  two  months'  imprisonment. 


COMMONWEALTH  v.  ADAMS. 
Supreme  Judicial  Court  of  Massachusetts.    1873. 

[Reported  1 14  Massachusetts,  323.] 

Complaint  for  assault  and  battery. 

At  the  trial  in  the  Superior  Court,  before  Bacon,  J.,  it  appeared  that 
the  defendant  was  drivuig  in  a  sleigh  down  Beacon  Street,  and  was 
approaching  the  intersection  of  Charles  Street,  when  a  team  occupied 
the  crossing.    The  defendant  endeavored  to  pass  the  team  while  driving 


SECT.  IV.]  COMMONWEALTH   V.    ADAMS.  205 

at  a  rate  prohibited  by  an  ordinance  of  the  city  of  Boston.  In  so  d(/mg, 
he  ran  a'^anist  and  knocked  down  a  boy  who  was  crossnig  Beacon  Street. 
No  special  intent  on  the  part  of  the  defendant  to  injure  the  boy  was 
siiown.  The  defendant  had  pleaded  guilty  to  a  complaint  for  fast  driv- 
in<^,  in  violation  of  the  city  ordinance.  The  Commonwealth  asked  for  a 
verdict,  upon  the  ground  that  the  intent  to  violate  the  city  ordinance 
supi)lied  the  intent  necessary  to  sustain  the  charge  of  assault  and  bat- 
tery. The  court  so  ruled,  and  thereupon  the  defendant  submitted  to  a 
verdict  of  guilty,  and  the  judge,  at  the  defendant's  rec^uest,  reported 
the  case  for  the  determination  of  this  court. 

A.  Ktcss,  for  the  defendant. 

C.  li.  Train,  Attorney-General,  for  the  Commonwealth. 

Endicott,  J.  We  are  of  opinion  that  the  ruling  in  this  case  cannot 
be  sustained.  It  is  true  that  one  in  the  pursuit  of  an  unlawful  act  may 
sometimes  be  punished  for  another  act  done  without  design  and  l)y  mis- 
take, if  the  act  done  was  one  for  which  he  could  have  been  punished  if 
done  wilfully.  lint  the  act,  to  be  unlawful  in  this  sense,  must  be  an  act 
bad  in  itself,  and  done  with  an  evil  intent;  and  the  law  has  always^ 
made  this  distinction  :  that  if  the  act  the  party  was  doing  was  merely 
malum  prohibitum,  he  shall  not  be  punishable  for  the  act  arising  from 
misfortune  or  mistake  ;  but  if  malum  in  se,  it  is  otherwise.  1  Hale 
P.  C.  39  ;  Foster  C.  L.  259.  Acts  mala  in  se  include,  in  addition  to 
felonies,  all  breaches  of  public  order,,  injuries  to  person  or  property, 
outrages  upon  public  decency  or  good  morals,  and  breaches  of  ollicial  jS^ 
duty,  when  done  wilfully  or  corruptly.  Acts  mala  prohibita  include 
any  matter  forbidden  or  commanded  I)y  statute,  but  not  otherwise  wrong. 
3  Greeul.  Ev.  §  1.  It  is  within  the  last  class  that  the  city  ordinance  of 
Boston  falls,  prohibiting  driving  more  than  six  miles  an  hour  in  the 
streets. 

Besides,  to  prove  the  violation  of  such  an  ordinance,  it  is  not  neces- 
sary to  show  that  it  was  done  wilfully  or  corruptly.  The  ordinance 
declares  a  certain  thing  to  be  illegal ;  it  therefore  becomes  illegal  to  do 
it,  without  a  wrong  motive  charged  or  necessary  to  be  proved ;  and 
the  court  is  bound  to  administer  the  penalty,  although  there  is  an  entire 
want  of  design.  The  King  v.  Sainsbury,  4  T.  II.  451,  457.  It  was  held 
in  Commonwealth  v.  Worcester,  3  Pick.  462,  that  proof  only  of  the  fact 
that  the  party  was  driving  faster  than  the  ordinance  allowed  was  suf- 
ficient for  conviction.  See  Commonwealth  v.  Farren,  9  Allen,  489  ; 
Commonwealth  v.  Waite,  11  Allen,  264.  It  is  therefore  immaterial 
whether  a  party  violates  the  ordinance  wilfully  or  not.  The  offence 
consists,  not  in  the  intent  with  which  the  act  is  done,  but  in  doing  the 
act  prohibited,  but  not  otherwise  wrong.  It  is  obvious,  therefore,  that 
the  violation  of  the  ordinance  does  not  in  itself  supply  the  intent  to  do 
another  act  which  requires  a  criminal  intent  to  be  proved.  The  learned 
judge  erred  in  ruling  that  the  intent  to  violate  the  ordinance  in  itself 
supplied  the  intent  to  sustain  the  charge  of  assault  and  l)attery.  The 
verdict  must  therefore  be  set  aside,  and  a  Alw  trial  (/ranted. 


206  COMMONWEALTH    V.    MINK.  [CHAP.  VI 


COMMONWEALTH   v.  MINK. 
Supreme  Judicial  Court  of  Massachusetts.    1877. 

[Reported  123  Massachusetts,  422.] 

Indictment  for  the  murder  of  Charles  Ricker  at  Lowell,  in  the  county 
of  Middlesex,  on  August  31 ,  1876.  Trial  before  Ames  and  Morton,  J  J., 
who  allowed  a  bill  of  exceptions  in  substance  as  follows  :  — 

It  was  proved  that  Charles  Ricker  came  to  his  death  by  a  shot  from 
a  pistol  in  the  hand  of  the  defendant.  The  defendant  introduced  evi- 
dence tending  to  show  that  she  had  been  engaged  to  be  married  to 
Ricker ;  that  an  interview  was  had  between  them  at  her  room,  in  the 
course  of  which  he  expressed  his  intention  to  break  off  the  engagement 
and  abandon  her  entirely  ;  that  she  thereupon  went  to  her  trunk,  took 
a  pistol  from  it,  and  attempted  to  use  it  upon  herself,  with  the  intention 
of  taking  her  own  life  ;  that  Ricker  then  seized  her  to  prevent  her  from 
accomplishing  that  purpose,  and  a  struggle  ensued  between  them;  and 
that  in  the  struggle  the  pistol  was  accidentally  discharged,  and  in  that 
way  the  fatal  wound  inflicted  upon  him. 

The  jury  were  instructed  on  this  point  as  follows:  "If  you  believe 
the  defendant's  stoiy,  and  that  she  did  put  the  pistol  to  her  head  with 
the  intention  of  committing  suicide,  she  was  about  to  do  a  criminal 
and  unlawful  act,  and  that  n  hich  she  had  no  right  to  do.  It  is  true, 
undoubtedly,  that  suicide  cannot  be  punished  by  any  proceeding  of  the 
courts,  for  the  reason  that  the  person  who  kills  himself  has  placed  him- 
self beyond  the  reach  of  justice,  and  nothing  can  be  done.  But  the 
law,  nevertheless,  recognizes  suicide  as  a  criminal  act,  and  the  attempt 
at  suicide  is  also  criminal.  It  would  be  the  duty  of  any  bystander  who 
saw  such  an  attempt  about  to  be  made,  as  a  matter  of  mere  humanit}', 
to  interfere  and  try  to  prevent  it.  And  the  rule  is,  that  if  a  homicide 
is  produced  by  the  doing  of  an  unlawful  act,  although  the  killing  was 
the  last  thing  that  the  person  about  to  do  it  had  in  his  mind,  it  would 
be  an  unlawful  killing,  and  the  person  would  incur  the  responsibility 
which  attaches  to  the  crime  of  manslaughter. 

"  Then  you  are  to  inquire,  among  other  things,  and  if  you  reach  that 
part  of  the  case.  Did  this  woman  attempt  to  commit  suicide  in  the  pres- 
ence of  Ricker?  and,  if  she  did,  I  shall  have  to  instruct  you  that  he  would 
have  a  right  to  interfere  and  try  to  prevent  it  by  force.  He  would  have 
a  perfect  right,  and  I  think  I  might  go  further  and  saj'  that  it  would  be 
his  duty,  to  take  the  pistol  away  from  her  if  he  possibly  could,  and  to 
use  force  for  that  purpose.  If  then,  in  the  course  of  the  struggle  on 
his  part  to  get  possession  of  the  pistol  to  prevent  the  person  from  com- 
mitting suicide,  the  pistol  went  off  accidcntall}-,  and  he  lost  his  life  in 
that  waj',  it  would  be  a  case  of  manslaughter,  and  it  would  not  be  one 
of  those  accidents  which  would  excuse  the  defendant  from  being  held 
criminally  accountable. 


SECT.  IV.]  COMMONWEALTH   V.   MINK.  207 

"  Did  she  get  into  such  a  condition  of  despondency  and  disappoint- 
ment that  she  was  trying  to  commit  snicidi;,  and  was  about  to  do  so? 
If  that  was  her  condition,  if  she  was  making  tliat  attempt,  and  he  inter- 
fered to  prevent  it  and  got  injured  by  an  accidental  discharge  of  tlie 
pistol,  it  would  be  manshvughter."  The  jury  returned  a  verdict  of  guilty 
of  manslaughter  ;  and  the  defendant  alleged  exceptions. 

CiJAV,  C.  J.'  TIic  life  of  every  luiman  being  is  under  the  protection 
of  the  law,  and  cannot  be  lawfully  taken  b}-  himself,  or  by  another  with 
his  consent,  except  by  legal  authority.  By  tiie  common  law  of  Eng- 
land, suicide  was  considered  a  crime  against  the  laws  of  God  and  man, 
the  lands  and  chattels  of  the  criminal  were  forfeited  to  the  King,  his 
body  had  an  ignominious  burial  in  the  highway,  :uid  he  was  deemed  a 
murderer  of  himself  and  a  felon, /"c/o  de  sc.  Hales  c.  Petit,  Plowd.  2o3, 
2C1  ;  3  Inst.  54;  1  Hale  P.  C.  411-417;  2  Hale  P.  C.  62;  1  Hawk, 
c.  27  ;  4  Bl.  Com.  95,  189,  190.  "  He  who  kills  another  upon  his  desire 
or  command  is,  in  the  judgment  of  the  law,  as  nuich  a  murderer  as  if 
he  had  done  it  merel}'  of  his  own  head."  1  Hawk.  c.  27,  s.  6.  One 
who  persuades  another  to  kill  himself,  and  is  present  when  he  does  so, 
is  guilty  of  murder  as  a  principal  in  the  second  degree  ;  and  if  two 
mutually  agree  to  kill  themselves  together,  and  the  means  employed  to 
produce  death  take  effect  upon  one  onl}-,  the  survivor  is  guilty  of  the 
murder  of  the  one  who  dies.  Bac.  I\Iax.  reg.  15  ;  ilex  v.  Dyson,  Russ. 
&  Ry.  523  ;  Regina  v.  Alison,  S  Car.  &  P.  418.  One  who  encourages 
another  to  commit  suicide,  but  is  not  present  at  the  act  which  causes 
the  death,  is  an  accessory  before  the  fact,  and  at  common  law  escaped 
punishment  onlv  because  his  principal  could  not  be  first  tried  and  con- 
victed. Russell's  case,  1  jMoody,  356  ;  Regina  r.  Leddington,  9  Car. 
&  P.  79.  And  an  attempt  to  commit  suicide  is  held  in  England  to  be 
punishable  as  a  misdemeanor.  Regina  v.  Doody,  6  Cox  C.  C.  463  ; 
Regina  v.  Burgess,  Leigh  &  Cave,  258  ;  s.  c.  9  Cox  C.  C.  247. 

Suicide  has  not  ceased  to  be  unlawful  and  criminal  in  this  Common- 
wealth by  the  simple  repeal  of  the  Colony  Act  of  1660  by  the  St  of 
1823,  c.  143,  which  (like  the  corresponding  St.  of  4  0.  IV.  c.  52,  enacted 
by  the  British  Parliament  within  a  year  before)  may  well  have  had  its 
origin  in  consideration  for  the  feelings  of  innocent  surviving  relatives ; 
nor  by  the  briefer  directions  as  to  the  form  of  coroner's  inquests  in  the 
Rev.  Sts.  c.  140,  s.  8,  and  the  Gen.  Sts.  c.  175,  s.  9,  which  in  this,  as  in 
most  other  matters,  have  not  repeated  at  length  the  forms  of  legal  pro- 
ceedings set  forth  in  the  statutes  codified  ;  nor  by  the  fact  that  the 
Legislature,  having  in  the  general  revisions  of  the  statutes  measured 
the  degree  of  punishment  for  attempts  to  commit  ofl^ences  by  the  puni'=;h 
ment  prescribed  for  each  offence  if  actually  committed,  has,  intentionally 
or  inadvertently,  left  the  attempt  to  commit  suicide  without  punishment, 
because  the  completed  act  would  not  be  punished  in  any  manner.  Rev. 
Sts.  c.  133,  s   12  ;  Gen.  Sts.  c.  168,  s.  8  ;  Commonwealth   v.  Dennis, 

*  Arguments  of  counsel  and  part  of  the  oinnion  are  omitted. 


c 


v: 


208  CONSTRUCTIVE   SPECIFIC   INTENT.  [CHAP.  VI. 

105  Mass.  162.  After  all  these  changes  in  the  statutes,  the  point  decided 
in  Bowen's  case  was  ruled  in  the  same  waj-  by  Chief  Justice  Bigelow 
and  Justices  Dewey,  Metcalf,  and  Chapman,  m  a  case  which  has  not 
been  reported.     Commonwealth  v.  Pratt,  Berkshire,  1862. 

Since  it  has  been  provided  by  statute  that  "any  crime  punishable  by 
death  or  imprisonment  in  the  state  prison  is  a  felon}',  and  no  other 
crime  shall  be  so  considered,"  it  may  well  be  that  suicide  is  not  techni- 
cally a  felony  in  this  Commonwealth.  Gen.  Sts.  c.  168,  s.  1  ;  St.  1852, 
c.  37,  s.  1.  But  being  unlawful  and  criminal  as  malum  in  se,  any 
attempt  to  commit  it  is  likewise  unlawful  and  criminal.  Every  one  has 
the  same  right  and  duty  to  interpose  to  save  a  life  from  being  so  unlaw- 
fully- and  criminally  taken  that  he  would  have  to  defeat  an  attempt 
unlawfully  to  take  the  life  of  a  third  person.  Fairfax,  J.,  in  22  E.  IV. 
45,  pi.  lo"^;  Marler  v.  Ayliffe,  Cro.  Jac.  134  ;  2  Rol.  Ab.  559  ;  1  Hawk. 
c.  60,  s.  23.  And  it  is  not  disputed  that  any  person  who,  in  doing  or 
attempting  to  do  an  act  which  is  unlawful  and  criminal,  kills  another, 
though  not  intending  his  death,  is  guilty  of  criminal  homicide,  and,  at 
the  least,  of  manslaughter. 

The  only  doubt  that  we  have  entertained  in  this  case  is,  whether  the 
act  of  the  defendant,  in  attempting  to  kill  herself,  was  not  so  malicious, 
in  the  legal  sense,  as  to  make  the  killing  of  another  person,  in  the 
attempt  to  carry  out  her  purpose,  murder,  and  whether  the  instructions 
given  to  the  jurj'  were  not  therefore  too  favorable  to  the  defendant. 

^xceptiotis  overruled. 


SECTION   IV.  {continued.) 
(h)  CoNSTiucTivE  Specific   Intent. 

1  Hale  P.  C.  569.  [Arson]  must  be  a  wilful  and  malicious  burning, 
otherwise  it  is  not  felony,  but  only  a  trespass  ;  and  therefore  if  A. 
shoot  unlawfully  in  a  hand-gun,  suppose  it  to  be  at  the  cattle  or  poul- 
try of  B.  and  the  fire  thereof  sets  another's  house  on  fire,  this  is  not 
felony,  for  though  the  act  he  was  doing  were  unlawful,  yet  he  had  no 
intention  to  burn  the  house  thereb}',  against  the  opinion  of  Dalt.  Cap. 
A.         105  p.  270. 

But  if  A.  have  a  malicious  intent  to  burn  the  house  of  B.,  and  in 
setting  fire  to  it  burns  the  house  of  B.  and  C.  or  the  house  of  B. 
escapes  by  some  accident,  and  the  fire  takes  in  the  house  of  C.  and 
burneth  it,  though  A.  did  not  intend  to  burn  the  house  of  C,  yet  in 
law  it  shall  be  said  the  malicious  and  wilful  burning  of  the  house  of 
C.  and  he  may  be  indicted  for  the  malicious  and  wilful  burning  of  the 
house  of  C.     Co.  P.  C.  p.  67. 


SECT.  IV.]  gore's  case.  209 


GORE'S   CASE. 
Ckown  Case  Rksekved.     IGU. 

[Reported  9  Cuke,  81  a. J 

Before  Fleming,  Chief  Justice,  and  Tanfield,  Chief  Baron,  Justices 
of  Assize,  this  case  happened  in  their  western  circuit.  Agnes,  the 
daughter  of  Roper,  married  one  Gore  ;  Gore  fell  sick  ;  Kuper,  the 
father,  in  good- will  to  the  said  Gore  his  son-in-law  went  to  one  Dr. 
Gray,  a  physician,  for  his  advice,  who  made  a  receipt  directed  to  one 
Martin,  his  apothecar}',  for  an  electuar}-  to  be  made,  which  the  said 
Martin  did  and  sent  it  to  the  said  Gore  ;  Agnes,  the  wife  of  Gore, 
secretly  mixed  ratsbane  with  the  electuary,  to  the  intent  therewith  to 
poison  her  husband,  and  afterward,  18  Mail,  she  gave  part  of  it  to  her 
husband,  who  eat  thereof  and  immediately  became  grievously  sick  ; 
the  same  day  Roper  the  father  eat  of  it,  and  immediately  also  became 
sick  ;  19  Maii  C.  eat  part  of  it,  and  he  likewise  fell  sick  ;  but  they  all 
recovered,  and  yet  are  alive.  The  said  Roper,  observing  the  operation 
of  the  said  electuary,  carried  the  said  box  with  the  said  electuary  21 
Mali  to  the  said  Gray  the  physician  and  informed  him  of  the  said 
accidents,  who  sent  for  the  said  Martin  the  apothecary  and  asked  him 
if  he  had  made  the  said  electuary  according  to  his  direction,  who 
answered  that  he  had  in  all  things  but  in  one,  which  he  had  not  in  his 
shop,  but  put  in  another  thing  of  the  same  operation,  which  the  said 
Dr.  Gray  well  approved  of;  whereupon  Martin  the  apothecary  said,  '•  To 
the  end  you  may  know  that  I  have  not  put  anything  in  it  which  I 
myself  will  not  eat,  I  will  here  before  you  eat  part  of  it,"  and  there- 
upon Martin  took  the  box,  and  with  his  knife  mingled  and  stirred  to- 
gether the  said  electuary,  and  took  and  eat  part  of  it,  of  which  he 
died  the  22d  day  of  May  following.  The  question  was,  if  upon  all 
this  matter  Agnes  had  committed  murder.  And  this  case  was  deliv- 
ered in  writing  to  all  the  judges  of  England  to  have  their  opinions  in 
the  case  ;  and  the  doubt  was,  because  Martin  himself  of  his  own  head, 
without  incitation  or  procurement  of  any,  not  only  eat  of  the  said 
electuary,  but  he  himself  mingled  and  stirred  it  together,  which  mix- 
ing and  stirring  had  so  incorporated  the  poison  with  the  electuary, 
that  it  made  the  operation  more  forciV)le  than  the  mixture  which  the 
said  Agnes  had  made ;  for  notwithstanding  the  mixture  which 
Agnes  had  made,  those  who  eat  of  it  were  sick,  but  yet  alive,  but  the 
mixture  which  Martin  has  made  by  mingling  and  stirring  of  it  with 
his  knife,  made  the  operation  of  the  poison  more  forcible  and  was  the 
occasion  of  his  death.  And  if  this  circumstance  would  make  a  ditfer- 
cnce  between  this  case  and  Saunders's  case  in  Plow.  Com.  474  was 
the  (lueslioM. 

And  it  was  resolved  by  all  the  judges  that  the  said  Airuos  was 
guilty  of  the  murder  of  the  said  Martin,  for  the  law  conjoins  the  mur- 

14 


^ 


210  KEGINA   V.   PEMBLITOX.  [cHAP.  VI. 

derous  intention  of  Agues  in  putting  tlie  jx>ison  into  the  electuary  to 
kill  her  husband  with  the  event  which  thence  ensued,  —  sc.  the 
death  of  the  said  Martin  ;  for  the  putting  of  the  ]x>ison  into  the  elec- 
tuary is  the  occasion  and  cause,  and  the  poisoning  and  death  of  the 
said  Martin  is  the  event,  qtiia  eventus  est  qui  ex  causa  sequitur,  et 
dicu7itur  €ve?itus  quia  ex  causis  everimnt,  and  the  stirring  of  the 
electuary  by  Martin  with  his  knife  without  the  putting  in  of  the  poison 
by  Agnes  could  not  have  been  the  cause  of  his  death. 

And  it  was  also  resolved  that  if  A.  puts  poison  into  a  pot  of  wine, 
&c.,  to  the  intent  to  poison  B.,  and  sets  it  in  a  place  where  he  sup- 
poses B.  will  come  and  drink  of  it,  and  b}-  accident  C.  (to  whom  A. 
has  no  malice)  comes  and  of  his  own  head  takes  the  pot  and  drinks  of 
it,  of  which  poison  he  dies,  it  is  murder  in  A.,  for  the  law  couples  the 
event  with  the  intention,  and  the  end  with  the  cause ;  and  in  the  same 
case  if  C.  thinking  that  sugar  is  in  the  wine,  stirs  It  with  a  knife  and 
drinks  of  it,  it  will  not  alter  the  case  ;  for  the  King  by  reason  of  the 
l)utting  in  of  the  poison  with  a  murderous  intent  has  lost  a  subject ; 
and  therefore  in  law  he  who  so  put  in  the  poison  with  an  ill  and  felo- 
nious intent  shall  answer  for  it.  But  if  one  prepares  ratsbane  to  kill 
rats  and  mice,  or  other  vermin,  and  leaves  it  in  certain  places  to  that 
purpose,  and  with  no  ill  intent,  and  one  finding  it  eats  of  it,  it  is  not 
felony,  because  he  who  prepares  the  poison  has  no  ill  or  felonious  in- 
tent :  but  when  one  prepares  poison  with  a  felonious  intent  to  kill  an}' 
reasonable  creature,  whatsoever  reasonable  creature  is  thereby-  killed, 
he  who  has  the  ill  and  felonious  intent  shall  be  punished  for  it,  for 
he  is  as  great  an  offender  as  if  his  intent  against  the  other  person 
had  taken  effect.  And  if  the  law  should  not  be  such,  this  horrible 
and  heinous  offence  would  be  unpunished ;  which  would  be  mischievous 
and  a  great  defect  in  the  law. 


REGINA   *.    PEMBLITON. 
Crown  Case  Reserved.     1874, 

[Repm-ted  12  Cux  C.  C,  607.] 

Case  stated  for  the  opinion  of  this  court  by  the  Recorder  of 
Wolverhampton. 

At  the  Quarter  Sessions  of  the  Peace  held  at  Wolverhampton  on  the 
8th  day  of  Januar}'  instant  Henrj'  Pembliton  was  indicted  for  tliat  he 
"unlawfully  and  maliciously  did  commit  damage,  injur}',  and  spoil  upon 
a  windovv  in  the  house  of  Henr}'  Kirkham"  contrar}'  to  the  provision 
of  the  Stat.  24  &  25  Vict.  c.  97,  s.  51.  This  section  of  the  statute 
enacts  :  — 

"  Whosoever  shall  unlawfully  and  maliciously  coQimit  anv  damage, 
injury,  or  spoil  to  or  upon  any  real  or  personal  property  whatsoever, 


SECT.  lY.]  REGINA   V.    I'EMBLITON.  211 

eltlior  of  a  public  or  a  private  nature,  for  which  no  punishment  is 
hereinbefore  providoel,  tlie  damiige,  injur}',  or  spoil  being  h)  an  anionut 
exceeding  £5,  shall  be  guilty  of  a  misdemeanor,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  without  hard  labor ;  and 
in  case  any  such  offence  shall  be  committed  between  the  hours  of  nine 
of  the  clock  in  the  evening  and  six  of  the  clock  in  the  next  morning,  he 
shall  be  liable  at  the  discretion  of  the  court  to  be  kept  in  penal  servi- 
tude for  any  term  not  exceeding  five  3^ears,  and  not  less  than  three,  or 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor." 

On  tl\e  night  of  the  Gth  day  of  December,  1873,  the  prisoner  was 
drinking  with  others  at  a  public-house  called  "The  Grand  Turk"  kept 
by  tiie  prosecutor.  About  eleven  o'clock  p.  m.  the  whole  part}'  were 
turned  out  of  the  house  for  being  disorderly,  and  they  then  began  to 
fight  in  the  street  and  near  the  prosecutor's  window,  where  a  crowd 
of  from  forty  to  fifty  persons  collected.  The  prisoner,  after  fighting 
some  time  with  persons  in  the  crowd,  separated  hitnself  from  them,  and 
removed  to  the  other  side  of  the  street,  where  he  picked  up  a  large 
stone  and  threw  it  at  the  persons  he  had  been  fighting  with.  The  stone 
passed  over  the  heads  of  those  persons,  and  struck  a  large  plate-glass 
window  in  the  prosecutor's  house,  and  broke  it,  thereby  doing  damage 
to  the  extent  of  £7  125.  9^. 

The  jury,  after  hearing  evidence  on  both  sides,  found  that  the  pris- 
oner threw  the  stone  which  broke  the  window,  but  that  he  threw  it  at 
the  people  he  had  l)een  fighting  with,  intending  to  strike  one  or  more  of 
them  with  it,  but  not  intending  to  break  the  window  ;  and  they  returned 
a  verdict  of  "guilt}',"  whereupon  I  respited  the  sentence,  and  admitted 
the  prisoner  to  bail,  and  pray  the  judgment  of  the  Court  for  Crown 
Cases  Reserved,  whether  upon  the  facts  stated  and  the  finding  of  the 
jury,  the  prisoner  was  rightly  convicted  or  not. 

(Signed)  John  J.  Powell, 

Recorder  of  Wolverhampton. 

No  counsel  appeared  to  argue  for  the  prisoner. 

J".  UnderhilU  for  the  prosecution.' 

Lord  Coleriogk,  C.  J.  I  am  of  opinion  that  this  conviction  must 
be  quashed.  The  facts  of  the  case  are  these.  The  prisoner  and  some 
other  persons  who  had  been  drinking  in  a  public-house  were  turned  out 
of  it  at  about  eleven  p.  m.  for  being  disorderly,  and  thoy  then  began  to 
fight  in  the  street  near  the  prosecutor's  window.  Tiio  prisoner  sepa- 
rated himself  from  the  others,  and  went  to  the  other  side  of  the  street, 
and  picked  up  a  stone,  and  threw  it  at  the  persons  he  had  been  fighting 
with.  The  stone  passed  over  their  heads,  and  broke  a  large  plate-glass 
window  in  the  prosecutor's  house,  doing  damage  to  an  amount  exceed- 
ing £5.     The  jury  found  that  the  prisoner  threw  the  stone  at  the  pcoplo 

*  The  ar^'umeut  is  omitted. 


212  REGINA   V.    PEMBLITON.  [CHAP.  VL 

he  had  been  fighting  \vith,  intendhig  to  strike  one  or  more  of  them  with  it. 
but  not  intending  to  break  the  window.  The  question  is  whether  under 
an  indictment  for  unh\wfully  and  inaUcionsly  committing  an  injury  to 
the  window  in  the  house  of  the  prosecutor,  the  proof  of  these  facts  alone, 
coupled  with  the  finding  of  the  jury,  will  do.  Now  I  think  that  is  not 
enough.  The  indictment  is  framed  under  the  24  &  25  Vict,  c  97,  s.  51. 
The  Act  is  an  Act  relating  to  malicious  injuries  to  propert}',  and  section 
51  enacts  that  whosoever  shall  unlawfully  and  maliciously  commit  any 
damage,  &c.,  to  or  upon  anj-  real  or  personal  property  whatsoever  of  a 
public  or  a  private  nature,  for  which  no  punishment  is  hereinbefore 
provided,  to  an  amount  exceeding  £5,  shall  be  guilty  of  a  misdemeanor. 
There  is  also  the  58th  section  which  deserves  attention.  "  Every  pun- 
ishment and  forfeiture  by  this  Act  imposed  on  an}-  person  maliciously 
committing  an}'  oflTence,  whether  the  same  be  punishable  upon  indict- 
ment or  upon  sum  mar}'  conviction,  shall  equally  apply  and  be  enforced, 
whether  the  offence  shall  be  committed  from  malice  conceived  against 
the  owner  of  the  property  in  respect  of  which  it  shall  be  committed, 
or  otherwise."  It  seems  to  me  on  both  these  sections  tliat  what  was 
intended  to  be  provided  against  by  the  Act  is  the  wilfully  doing  an 
unlawful  act,  and  that  the  act  must  be  wilfully  and  intentionally  done 
on  the  part  of  the  person  doing  it,  to  render  him  liable  to  be  convicted. 
Without  saying  that,  upon  these  facts,  if  the  jury  had  found  tliat  the 
prisoner  had  been  guilty  of  throwing  the  stone  recklessly,  knowing  that 
there  was  a  window  near  which  it  might  probably  hit,  I  should  have 
been  disposed  to  interfere  with  the  conviction,  yet  as  they  have  found 
that  he  threw  the  stone  at  the  people  he  had  been  fighting  with,  intend- 
ing to  strike  them  and  not  intending  to  break  the  window,  I  think  the 
conviction  must  be  quashed.  I  do  not  intend  to  throw  any  doubt  on 
the  cases  which  have  Ijeeu  cited,  and  which  show  what  is  sufficient  to 
constitute  malice  in  the  case  of  murder.  They  rest  upon  the  princi- 
ples of  the  common  law,  and  have  no  application  to  a  statutory  offence 
created  by  an  Act  in  which  the  words  are  carefully  studied. 

Blackburn,  J.  I  am  of  the  same  opinion,  and  I  quite  agree  that  it 
is  not  necessary  to  consider  what  constitutes  wilful  malice  aforethought 
to  bring  a  case  within  the  common  law  crime  of  murder,  when  we  are 
construing  this  statute,  which  says  that  whosoever  shall  unlawfully  and 
maliciously  commit  any  damage  to  or  upon  any  real  or  personal  prop- 
erty to  an  amount  exceeding  £5,  shall  be  guilty  of  a  misdemeanor. 
A  person  may  be  said  to  act  maliciously  when  he  wilfully  does  an 
unlawful  act  without  lawful  excuse.  The  question  here  is,  Can  the 
prisoner  be  said,  when  he  not  only  threw  the  stone  unlawfully,  but 
broke  the  window  unintentionally,  to  have  unlawfully  and  maliciously 
broken  the  window?  I  think  that  there  was  evidence  on  which  the  jury 
miglit  have  found  that  he  unlawfully  and  maliciously  broke  the  window, 
if  they  had  found  that  the  prisoner  was  aware  that  the  natural  and 
probable  consequence  of  his  throwing  the  stone  was  tliat  it  miglit  break 
the  glass  window,  on  the  principle  that  a  man  must  be  taken  to  intend 


SECT.  IV.]  REGINA    V.    FAULKNER.  213 

what  is  the  natural  and  probalilc  consequence  of  his  acts.  Rut  the  jury 
have  not  found  that  the  prisoner  threw  the  stone,  knowing  that,  on  the 
other  side  of  the  men  he  was  throwing  at,  tlicre  was  a  glass  window, 
and  that  he  was  reckless  as  to  wiietijer  lie  did  or  did  not  l)reak  the 
T.'indow.  On  the  contrary,  tliey  have  found  that  he  did  not  intend  to 
break  the  window.  I  think  therefore  that  the  conviction  must  be 
quashed. 

PiGOTT,  B.     I  am  of  the  same  opinion. 

Lusii,  J.  I  also  think  that  on  this  fmding  of  the  jury  we  have  no 
alternative  but  to  hold  that  tlie  conviction  must  l>o  quashed.  The  word 
"  maliciously  "  means  an  act  done  either  actually  or  constructively  with 
a  malicious  intention.  The  jury  might  have  found  that  he  did  intend 
actually  to  break  the  window,  or  constructively  to  do  so,  as  that  he 
knew  that  the  stone  might  probably  break  it  when  he  threw  it.  But 
they  have  not  so  found. 

Cleasby,  B.,  concurred.  Co7iviction  quashed. 


REGINA   V.   FAULKNER. 
Crown  Case  Reservp:d,  Ireland.     1877. 

[Reported  1.3  Cox  C.  C.  5.50] 

Case  reserved  by  Lawson,  J.,  at  the  Cork  Summer  Assizes,  1876. 
The  prisoner  was  indicted  for  setting  fire  to  the  ship  "  Zemindar,"  on 
the  high  seas,  on  the  26th  day  of  June,  1876.  The  indictment  was  as 
follows:  "That  Robert  Faulkner,  on  the  26th  day  of  June,  1876,  on 
board  a  certain  ship  called  the  '  Zemindar,'  the  property  of  Sandback, 
Tenne,  and  Co.,  on  a  certain  voyage  on  the  high  seas,  then  being  on 
the  high  seas,  feloniously,  unlawfully,  and  maliciously,  did  set  fire  to  the 
said  ship  '  with  intent  thereby  to  prejudice  the  said '  (these  words  were 
struck  out  at  the  trial  by  the  learned  judge,  and  the  following  words 
inserted,  'called  the  ''  Zemindar,"  the  property  of)  Sandback,  Tenne, 
and  Co.,  and  that  the  said  Robert  Faulkner,  on  the  day  and  year  afore- 
said, on  board  a  certain  ship  called  the  '  Zemindar,'  being  the  property 
of  Sandback,  Parker,  and  other,  on  a  certain  voyage  on  the  high  seas, 
then  being  upon  the  high  seas,  feloniously,  unlawfully,  and  maUciously, 
did  set  fire  to  the  said  ship,  with  intent  thereby  to  prejudice  the  said 
Sandback,  Parker,  and  other,  tlie  owners  of  certain  goods  and  chattels 
then  laden,  and  being  on  board  said  ship."  It  was  proved  that  the 
"  Zemindar"  was  on  her  voyage  home  with  a  cargo  of  rum,  sugar,  and 
cotton,  worth  £50,000.  That  the  prisoner  was  a  seaman  on  board,  that 
he  went  into  the  forecastle  hold,  opened  the  sliding  door  in  the  bulk- 
head, and  so  got  into  the  hold  where  the  rum  was  stored  ;  he  had  no 
business  there,  and  no  authority  to  go  there,  and  went  for  the  purpose 
of  stealing  some  rum ;  that  he  bored  a  hole  in  the  cask  with  a  gimlet ; 
that  the  rum  ran  out ;  that  when  trying  to  put  a  spile  in  the  hole  out  of 


214  REGIXA   V.   FAULKNER.  [CHAP.  VI. 

which  the  rum  was  running  he  had  a  lighted  match  in  his  hand ;  that 
the  rum  caught  fire  ;  that  the  prisoner  himself  was  burned  on  the  arms 
and  neck ;  and  that  the  ship  caught  fire  and  was  completed  destro3'ed. 
At  the  close  of  the  case  for  the  Crown,  counsel  for  the  prisoner  aslvcd 
for  a  direction  of  an  acquittal  on  the  ground  that  on  the  facts  proved 
the  indictment  was  not  sustained,  nor  the  allegation  that  the  prisoner 
had  unlawfully-  and  maliciouslj-  set  fire  to  the  ship  proved.  The  Crown 
contended  that  inasmuch  as  the  prisoner  was  at  the  time  engaged  in 
the  commission  of  a  felon}-,  the  indictment  was  sustained,  and  the 
allegation  of  the  intent  was  immaterial. 

At  the  second  hearing  of  the  case,  before  the  Court  for  Crown  Cases 
Reserved,  the  learned  judge  made  the  addition  of  the  following  para- 
graph to  the  case  stated  b}-  him  for  the  court. 

"  It  was  conceded  that  the  prisoner  had  no  actual  intention  of  burn- 
ing the  vessel,  and  I  was  not  asked  to  leave  an}'  question  to  the  jury 
as  to  the  prisoner's  knowing  the  probable  consequences  of  his  act,  or 
as  to  his  reckless  conduct." 

The  learned  judge  told  the  jury  that  although  the  prisoner  had  no 
actual  intention  of  burning  the  vessel,  still  if  they  found  he  was  en- 
gaged in  stealing  the  rum,  and  that  the  fire  took  place  in  the  manner 
above  stated,  they  ought  to  find  him  guilty.  The  juiy  found  the  pris- 
oner guilty  on  botli  counts,  and  he  was  sentenced  to  seven  years'  penal 
servitude.  The  question  for  the  court  was  whether  the  direction  of  the 
learned  judge  was  right ;  if  not,  the  conviction  should  be  quashed.'' 

Peter  O'Brien^  for  the  prisoner. 

The  Attorney  General  (May),  with  him  Green,  Q.  C,  for  the  Crown. '^ 

O'Brien,  J.'  I  am  also  of  opinion  that  the  conviction  sliould  be 
quashed,  and  I  was  of  that  opinion  before  the  case  for  our  consideration 
was  amended  by  my  brother  Lawson.  I  had  inferred  from  the  original 
case  that  his  direction  to  the  jur}'  was  to  the  effect  now  expressly  stated 
by  amendment,  and  that,  at  the  trial,  the  Crown's  counsel  conceded 
that  the  prisoner  had  no  intention  of  burning  the  vessel,  or  of  ignit- 
ing the  rum  ;  and  raised  no  questions  as  to  prisoner's  imagining  or 
having  any  ground  for  supposing  that  tlie  fire  would  be  the  result  or 
consequence  of  his  act  in  steahng  the  rum.  "With  respect  to  Reg.  v. 
Pembliton,  12  Cox  C.  C  607,  it  appears  to  me  there  were  much  stronger 
grounds  in  that  case  for  upholding  the  conviction  than  exist  in  the  case 
before  us.  In  that  case  the  breaking  of  the  window  was  the  act  of  the 
prisoner.  He  threw  the  stone  that  broke  it ;  he  threw  it  with  the  un- 
lawful intent  of  striking  some  one  of  the  crowd  about,  and  the  breaking 
of  the  window  was  the  direct  and  iipmediate  result  of  his  act.     And  yet 

1  24  &  25  Vict.  c.  97,  s.  42,  "Whoever  shall  unlawfully  and  maliciously  set  fire  to, 
cast  away,  or  in  anywise  destroy  any  ship  or  vessel  .   .  .  shall  be  guilty  of  felony." 

*  Arguments  of  counsfd  are  omitted. 

8  Concurring  opinions  of  Barry  and  Fitzgerald,  JJ.,  and  Fitzgerald,  B.,  and 
the  dissenting  opinion  of  Keogh,  J.  are  omitted.  Dowse  and  Deasy,  BB.,  and 
Lawson,  J.  also  concurred.  —  Ed. 


SECT.  IV.]  EEGINA   V.    FAULKNER.  215 

the  court  unanimously  quiishcd  the  conviction  upon  the  ground  that, 
although  the  prisoner  threw  the  stone  intending  to  strike  some  one  or 
more  persons,  he  did  not  intend  to  br(!:dc  tiu;  window.  The  courts 
above  have  intimated  their  opinion  that  if  the  jur}-,  upon  a  question  to 
that  effect  being  left  to  tiiem,  had  found  that  the  prisoner,  knowing  the 
window  was  there,  might  have  reasonably  expected  that  the  result  of 
his  act  would  be  the  breaking  of  the  window,  that  then  the  conviction 
siiould  be  upiield.  During  the  argument  of  this  case  the  Crown  counsel 
required  us  to  assume  that  the  jury  found  tliuir  verdict  upon  the  grountl 
that  in  tlieir  opinion  tlie  prisoner  may  have  expected  that  the  fire  would 
be  the  consequence  of  his  act  in  stealing  the  rum,  but  nevertheless  did 
the  act  reckl(!ssly,  not  caring  whether  the  fire  took  place  or  not.  But 
at  the  trial  there  was  not  even  a  suggestion  of  any  such  ground,  and 
we  cannot  assume  that  the  jur}-  formed  an  oi)inion  which  there  was  no 
evidence  to  sustain,  and  which  would  be  altogether  inconsistent  with 
the  circumstances  under  which  the  tire  took  place.  The  reasonable 
inference  from  the  evidence  is  that  the  prisoner  lighted  the  match  for 
the  purpose  of  putting  the  spile  in  the  hole  to  stop  the  further  running 
of  the  rum,  and  that  while  he  was  attempting  to  do  so,  the  rum  came  in 
contact  with  the  lighted  match  and  took  fire.  The  recent  case  of  Reg. 
V.  Welch,  13  Cox  C.  C.  121,  has  been  also  referred  to,  and  has  been 
relied  on  by  the  Crown  counsel  on  the  ground  that,  though  the  jury 
found  that  the  prisoner  did  not,  in  fact,  intend  to  kill,  maim,  or  wound 
the  mare  that  had  died  from  the  injury  inllicted  by  the  prisoner,  the 
prisoner  was,  nevertheless,  convicted  on  an  indictment  charging  him 
with  having  unlawfully  and  maliciously  killed,  maimed,  or  wounded  the 
mare,  and  such  conviction  was  upheld  bj-  the  court.  But  on  referring 
to  the  circumstances  of  that  case  it  will  be  seen  that  tlie  decision  in  it 
does  not  in  any  way  contlict  with  that  in  the  previous  case  of  Reg.  v. 
Pembliton,  and  furnishes  no  ground  for  sustaining  the  present  convic- 
tion. Mr.  Justice  Lindley,  who  tried  that  subsequent  case,  appears  to 
have  acted  in  accordance  with  the  opinion  expressed  b\'  the  judges  in 
Keg.  V.  Pembliton.  Besides  leaving  to  the  jury  the  question  of  prisoner's 
intent,  he  also  left  them  a  second  question,  namel}-,  whether  the  pris- 
oner, when  he  did  the  act  complained  of,  knew  that  what  he  was  doing 
would  or  might  kill,  maim,  or  wound  the  mare,  and  nevertheless  did  the 
act  recklessly,  and  not  caring  whether  the  mare  was  injured  or  not. 
The  jury  answered  that  second  question  in  the  attirmative.  Their 
finding  was  clearly  warranted  by  the  evidence,  and  the  conviction  was 
properly  affirmed.  By  those  two  questions  a  distinction  was  taken 
between  the  case  of  an  act  done  by  a  party  Avith  the  actual  intent  to 
cause  the  injiu-y  inflicted,  and  the  case  of  an  act  done  by  a  party  know- 
ing or  believing  that  it  would  or  might  cause  such  injury,  but  reckless 
of  the  result  whether  it  did  or  did  not.  In  the  case  now  liefore  us  there 
was  no  ground  whatever  for  submitting  to  the  jury  an}'  question  as  to 
the  prisoner  believing  or  supposing  that  the  stealing  of  the  rum  would 
be  attended  with  a  result  so  accidental  and  so  dangerous  to  hiniselC 


216  REGIXA   V.   FAULKNER.  [CHA?.  VT. 

During  the  argument  doubts  were  suggested  as  to  the  soundness  of  tho 
decision  in  Reg.  v.  Pembliton ;  but  in  m}'  opinion  that  case  was  rightl}- 
decided,  and  should  be  followed.  Its  authority  was  not  questioned  in 
Reg.  V.  Welch,  in  which  the  judges  who  constituted  the  court  were 
different  from  those  who  had  decided  Reg.  i'.  Pembliton,  with  the  excep- 
tion of  Lord  Coleridge,  who  delivered  the  judgments  of  the  court  on 
both  occasions. 

Palles,  C.  B.  I  concur  in  the  opinion  of  the  majority  of  the  court, 
and  I  do  so  for  the  reasons  already  stated  by  mj'  brother  Fitzgerald. 
I  agree  with  my  brother  Keogh  that  from  the  facts  proved  the  inference 
might  have  been  legitimate!}'  drawn  that  the  setting  fire  to  tlie  ship 
was  malicious  within  the  meaning  of  the  24  &  25  Vict.  c.  97.  I  am  of 
opinion  that  that  inference  was  one  of  fact  for  the  jury,  and  not  a  con- 
clusion of  law  at  wliich  we  can  arrive  upon  the  case  before  us.  There 
is  one  fact  from  which,  if  found,  that  inference  would,  in  my  opinion, 
have  ai'isen  as  matter  of  law,  as  that  the  setting  fire  to  the  ship  was  the 
probable  result  of  the  prisoner's  act  in  having  a  lighted  match  in  the 
place  in  question  ;  and  if  that  had  been  found  I  should  have  concurred 
in  the  conclusion  at  which  Mr.  Justice  Keogh  has  arrived.  In  my 
judgment  the  law  imputes  to  a  person  who  wilfull}'  commits  a  criminal 
act  an  intention  to  do  everything  which  is  the  probable  consequence  of 
the  act  constituting  the  corjncs  delicti  which  actually  ensues.  In  mj' 
opinion  this  inference  arises  irrespective  of  the  particular  consequence 
which  ensued  being  or  not  being  foreseen  b}-  the  criminal,  and  whether 
his  conduct  is  reckless  or  the  reverse.  This  much  I  have  deemed  it 
right  to  say  to  prevent  misconception  as  the  grounds  upon  which  m}' 
opinion  is  based.  I  wish  to  add  one  word  as  to  Reg.  v.  Pembliton,  12 
Cox  C.  C.  607.  In  my  opinion  the  learned  judges  who  were  parties  to 
that  decision  never  intended  to  decide,  and  did  not  decide,  any  tiling 
contrary  to  the  views  I  have  expressed.  That  they  did  not  deem  actual 
intention,  as  distinguished  from  implied  intention,  essential  is  shown 
by  the  subsequent  case  of  Reg.  v.  Welch,  in  which  an  indictment  under 
the  40lh  section  of  the  same  Act  was  upheld,  although  actual  intention 
was  negatived  by  the  jury.  The  facts  found  in  answer  to  the  second 
question  in  that  case  cannot  have  been  relied  upon  as  evidence  of 
actual  intention.  As  evidence  the}'  would  have  been  valueless  in  face 
of  the  finding  negativing  the  fact  which  in  this  view  the}'  would  have 
but  tended  to  prove.  Their  value  was  to  indicate  a  state  of  facts  in 
which  intention  was  imputed  by  an  irrefutable  inference  of  law.  It  was 
not  germane  to  the  actual  decisions  in  Reg.  v.  Pembliton  and  Reg.  v. 
Welch  to  determine  whether  the  state  of  facts  from  which  this  inference 
of  law  arises  is  that  suggested  in  the  first  case  and  acted  upon  by  the 
second,  or  the  circumstance  of  one  act  being  the  natural  consequence 
of  the  other.  Some  of  the  learned  judges,  no  doubt,  during  the  argu- 
ments and  in  their  judgments  in  the  first  case  indicate  a  state  of  facts 
from  which  this  inference  would  arise.  They  do  not  decide  that  the 
same  inference  might  not  arise  in  the  other  state  of  facts  to  which  I 


SECT.  IV.]  REGINA    V.    LATIMER.  217 

have  alludod.  If,  contrary  to  my  own  view  of  that  case,  it  shall  be  held 
to  involve  that  intention  to  do  that  which  is  a  necessary  consequence 
of  a  wrongful  act  wilfully  coinniilted  is  not  an  inference  irrefutable  as 
matter  of  law,  I  must  say,  wilh  unfeignetl  deference,  tliat  I  shall  hold 
myself  free  hereafter  to  decline  to  follow  it.  The  Lord  Ciiief  Justice 
of  the  Common  Pleas,  who,  in  consequence  of  illness,  has  been  unal)le 
to  preside  to-day,  has  authorized  me  to  state  that  he  considers  that  the 
case  before  us  is  concluded  by  Reg.  v.  Pembliton. 

Conviction  quashed. 


REGINA  V.   LATIMER. 
Crown  Case  Reserved.     1886. 

[Reported  16  Cox  C.  C  70.] 

Case  stated  by  the  learned  Recorder  for  the  borough  of  Uevonport 
as  follows  :  — 

The  prisoner  was  tried  at  the  April  Quarter  Sessions  for  the  borough 
of  Devonport  on  the  10th  day  of  April,  1886. 

The  prisoner  was  indicted  for  unlawfully  and  maliciously  wounding 
Ellen  Rolston.  There  was  a  second  count  charging  him  with  a  com- 
mon assault. 

The  evidence  showed  that  the  prosecutrix,  Ellen  Rolston,  kept  a 
public-house  in  Devonport ;  that  on  Sunday,  the  14th  day  of  PY-bruary, 
1886,  the  prisoner,  who  was  a  soldier,  and  a  man  named  Horace 
Chappie  were  in  the  public-house,  and  a  quarrel  took  place,  and  event- 
ually the  prisoner  was  knocked  down  by  the  man  Horace  Chappie. 
The  prisoner  subsequently  went  out  into  a  yard  at  tlie  back  of  tiie 
house.  In  about  five  minutes  the  prisoner  came  back  hastily  through 
the  room  in  which  Chappie  was  still  sitting,  having  in  his  hand  his 
belt  which  he  had  taken  off.  As  the  prisoner  passed  he  aimed  a  blow 
with  his  belt  at  the  said  Horace  Chappie,  and  struck  him  sliglitly  ; 
the  belt  bounded  off  and  struck  the  prosecutrix,  who  was  standing 
talking  to  the  said  Horace  Chappie,  in  the  face,  cutting  her  face  open 
and  wounding  her  severeh*. 

At  the  close  of  the  case  the  learned  Recorder  left  these  questions  to 
the  jury:  1.  Was  the  blow  struck  at  Chappie  in  self-defence  to  get 
through  the  room,  or  unlawfully  and  maliciously?  2.  Did  the  blow  so 
struck  in  fact  wound  Ellen  Rolston?  3.  Was  the  striking  Ellen 
Rolston  purely  accidental,  or  was  it  such  a  consequence  as  the  pris- 
oner should  have  expected  to  follow  from  the  blow  he  aimed  at 
Chappie  ? 

The  jury  found:  1.  That  the  blow  was  unlawful  and  malicious. 
2.  That  the  blow  did  in  fact  wound  Ellen  Rolston.  3.  That  the  strik- 
ing Ellen  Rolston  was  purely  accidental,  and  not  such  a  consequence 
of  the  blow  as  the  prisoner  ought  to  have  expected. 


218  EEGINA   V.    LATIMER.  [CHAP.  VI. 

Upon  these  findings  the  learned  Recorder  directed  a  verdict  of 
guilt}-  to  be  entered  to  the  first  count,  but  respited  judgment,  and 
admitted  the  prisoner  to  bail,  to  come  up  for  judgment  at  the  next 
sessions. 

The  question  for  the  consideration  of  the  court  was,  whether  upon 
the  facts  and  the  findings  of  the  jur}-  the  prisoner  was  rightly  con- 
victed of  the  offence  for  which  he  was  indicted. 

B}-  sect.  20  of  24  &  25  Vict.  c.  100,  it  is  enacted  that,  "  Whosoever 
shall  unlawfully  and  maliciously  wound  or  inflict  any  grievous  bodily 
harm  upon  an}-  other  person,  either  with  or  without  any  weapon  or 
instrument,  shall  be  guilty  of  misdemeanor." 

Croft  for  the  prisoner.^ 

Ilelpman,  for  the  prosecution,  was  not  called  upon. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  this  conviction  must 
be  sustained.  In  the  first  place,  it  is  common  knowledge  that,  If  a 
person  has  a  malicious  intent  towards  one  person,  and  in  carrying  into 
eff'ect  that  malicious  intent  he  injures  another  man,  he  is  guilty  of 
what  the  law  considers  malice  against  the  person  so  injured,  because 
he  is  guilt}'  of  general  malice  ;  and  is  guilty  if  the  result  of  his  unlaw- 
ful act  be  to  injure  a  particular  person.  That  would  be  the  law  if  the 
case  were  res  Integra;  but  it  is  not  res  Integra  because,  in  Reg.  v. 
Hunt,  a  man  in  attempting  to  injure  A.  stabbed  the  wrong  man. 
There,  in  point  of  fact,  he  had  no  more  intention  of  injuring  B.  than 
a  man  has  an  intent  to  injure  a  particular  person  wlio  fires  down  a 
street  where  a  number  of  persons  are  collected,  and  injures  a  person 
he  never  heard  of  before.  But  he  had  an  intent  to  do  an  unlawful  act, 
and  in  carrying  out  that  intent  he  did  injure  a  person  ;  and  tlie  law 
says  that,  under  such  circumstances,  a  man  is  guilty  of  maliciously 
wounding  the  person  actually  wounded.  That  would  be  the  ordinary 
state  of  the  law  if  it  had  not  been  for  the  case  of  Reg.  v.  Pembliton. 
But  I  observe  that,  in  such  an  indictment,  as  in  that  case,  the  words 
of  the  statute  carry  the  case  against  the  prisoner  more  clearly  still, 
because,  by  sect.  18  of  the  statute  24  &  25  Vict.  c.  100,  it  is  enacted 
that :  "  Whosoever  shall  unlawfully  and  maliciously  by  any  means 
whatsoever  wound  .  .  .  any  person  .  .  .  with  intent  ...  to  maim, 
disfigure,  or  disable  any  person  .  .  .  shall  be  guilty  of  felony ; "  and 
then  sect.  20  enacts  that  "  whosoever  sliall  unlawfully  and  maliciously 
wound  .  .  .  any  other  person  .  .  .  shall  be  guilty  of  a  misdemeanor ;  " 
and  be  liable  to  certain  punishments.  Therefore,  the  language  of  the 
18th  and  20th  sections  are  perfectly  difl^'erent ;  and  it  must  be  remem- 
bered that  this  is  a  conviction  for  an  offence  under  the  20th  section. 
Now,  the  Master  of  the  Rolls  has  pointed  out  that  these  very  sections 
are  in  substitution  for  and  correction  of  the  earlier  statute  of  9  Geo.  4, 
c.  31,  where  it  was  necessary  that  the  act  should  have  been  done  with 
intent  to   maim,  disfigure,  or  disable  such  person,  showing  that  the 

*  The  argument  is  omitted. 


SECT.  IV.]  REGINA   V.    LATIMEK.  219 

intent  must  have  been  to  injure  the  person  actually  injured.  Those 
words  are  left  out  in  the  later  statute,  and  the  words  are  "  wound  an}' 
other  person."  I  cannot  see  tliat  there  could  be  any  question,  but  for 
the  case  of  Reg.  v  Penibliton.  Now,  I  think  that  that  case  was  prop- 
erly' decided  ;  but  upon  a  ground  which  renders  it  clearly  distinguish- 
able from  the  present  case.  That  is  to  say,  the  statute  which  was 
under  discussion  in  Reg.  v.  Pembliton  makes  an  unlawful  injury  to 
property  punishable  in  a  certain  wa}'.  In  that  case  the  jury  and  the 
facts  expressly  negatived  that  there  was  any  intent  to  injure  any  prop- 
erty at  all;  and  the  court  held  that,  in  a  statute  which  created  it  an 
offence  to  injure  property,  there  must  be  an  intention  to  injure  property 
in  order  to  support  an  indictment  under  that  statute.  But  for  that 
case  ]Mr.  Croft  is  out  of  court,  and  I  therefore  think  that  this  convic- 
tion should  be  sustained. 

Lord  Pusher,  M.  R.  I  am  of  the  same  opinion.  It  seems  to  me 
that  the  case  of  Reg.  v.  Pembliton  is  the  only  case  which  could  be 
cited  against  a  well-known  principle  of  law.  But  that  case  shows  that 
there  was  no  intention  to  injure  any  property  at  all ;  therefore  there 
was  no  intent  to  commit  the  crime  mentioned  in  the  Act. 

BowEN,  L.  J.  I  am  also  of  opinion  that  this  conviction  should  be 
affirmed.  It  is  quite  clear  that  this  offence  was  committed  without  an}-- 
malice  in  the  mind  of  the  prisoner,  and  that  he  had  no  intention  of 
wounding  Ellen  Rolston.  The  only  difficulty  that  arises  is  from  Reg. 
V.  Pembliton,  which  was  a  case  under  an  Act  of  Parliament  which 
does  not  deal  with  all  malice  in  general,  but  with  malice  towards  prop- 
erty ;  and  all  that  case  holds  is,  that  though  the  prisoner  would  have 
been  guilty  of  acting  maliciously  within  the  common  law  meaning  of 
the  term,  s(ill  he  was  not  guilty  of  acting  maliciously  within  the  mean- 
ing of  a  statute  which  requires  a  malicious  intent  to  injure  property. 
Had  the  prisoner  meant  to  strike  a  pane  of  glass,  and  without  any 
reasonable  expectation  of  doing  so  injured  a  person,  it  might  be  said 
that  the  malicious  intent  to  injure  property  was  not  enough  to  sustain 
a  prosecution  under  this  statute.  But,  as  the  jury  found  that  the 
prisoner  intended  to  wound  Chappie,  I  am  of  opinion  that  he  acted 
maliciously  within  the  meaning  of  this  statute. 

FiELP,  J.  I  am  also  of  opinion  that  this  conviction  must  be  af- 
firmed. I  think  this  a  very  important  case  and  one  of  very  wide 
application,  and  am  very  glad  that  it  has  come  before  this  court,  and 
has  been  carefully  considered  and  decided  so  that  there  may  be  no 
doubt  about  the  matter. 

Mamsty,  J.  I  do  not  propose  to  add  more  than  a  few  words.  The 
Axcts  in  this  case  raise  an  exceedingly  important  question,  because  the 
man  Cliapi)le,  who  was  intended  to  be  struck,  was  standing  close  by 
the  woman  who  was  wounded,  and  who  was  talking  to  him  ;  and  the 
prisoner  mtending  to  strike  Chappie  with  the  belt  did  strike  him,  but 
the  belt  bounded  off  and  struck  Ellen  Rolston.  It  seems  to  me  that 
the  first  and  second  findings  of  the  jury  justify  the  conviction,  because 


C-V\ 


220  TvEX    V.    KNIGHT.  [CHAP.  VI. 

they  arc  in  these  terras  :  "  The  jury  found  that  the  blow  was  unlawful 
and  malicious,  and  that  it  did  in  fact  wound  Ellen  Rolston  ;  "  and  that 
being  so,  I  think  that  the  third  finding  does  not  entitle  the  prisoner  to 
an  acquittal.  It  is  true  he  did  not  intend  to  strike  Pollen  Ronton,  but 
he  did  intend  to  strike  Chappie,  and  in  doing  so  wounded  Pollen  Rols- 
ton ;  therefore  I  think  that  the  third  finding  is  quite  immaterial,  and 
this  conviction  should  be  affirmed.^ 

Conviction  affirmed. 


SECTION  V. 

Concurrence  of  Intent  and  Act. 

1  Hawk  P.  C.  ch.  7,  sect.  3.  The  bare  intention  to  commit  a  felony 
is  so  very  criminal  that,  at  the  common  law,  it  was  punishable  as 
felon}'  where  it  missed  its  effect  through  some  accident  no  way  lessen- 
ing the  guilt  of  the  offender.  But  it  seems  agreed  at  this  day,  that 
felony  shall  not  be  imputed  to  a  bare  intention  to  commit  it ;  yet  it  is 
certain  that  the  party  ma}-  be  very  severely  fined  for  such  an  intention. 


REX  V.  KNIGHT. 
Crown  Case  Reserved.     1782. 

[Reported  2  East,  Pleas  of  the  Crown,  510.] 

The  prisoners  were  indicted  for  felonioush'  and  burglariously  break- 
ing and  entering  the  dwelling-house  of  Mary  Snelhng  at  East  Grin- 
stead,  in  the  night  of  November  14,  1781,  with  intent  to  steal  the  goods 
of.  Leonard  Hawkins,  then  and  there  being  in  the  said  dwelling-house. 
It  ajDpeared  tliat  L.  Hawkins,  being  an  excise  officer,  had  seized  seven- 
teen bags  of  tea  on  the  same  month  at  a  Mrs.  Tilt's,  in  a  shop  entered 
in  the  name  of  Smith,  as  being  there  without  a  legal  permit,  and  had 
removed  the  same  to  Mrs.  Snelling's  at  East  Grinstead,  where  Hawkins 
lodged.  The  tea,  the  witnesses  said,  the}'  supposed  to  belong  to  Smith  ; 
and  that  on  the  night  of  November  14  the  prisoners  and  divers  other 
persons  broke  open  the  house  of  Mary  Snelling  with  intent  to  take  this 
tea.  It  was  not  proved  that  Smith  was  in  company  with  them  ;  but 
the  witnesses  swore  that  they  supposed  the  fact  was  committed  either 
in  company  with  or  by  the  procui-ement  of  Smith.  The  jur}'  were  di- 
rected to  find  the  prisoners  guilty,  on  the  point  being  reserved  ;  and 
being  also  directed  to  find  as  a  fact  with  what  intent  the  prisoners  broke 

1  See  ace.  (wounding  with  intent  to  do  bodily  harm)  Reg.  v.  Lynch,  1  Cox  C.  C. 
361;  Reg.  v.  Stofford,  11  Cox  C.  C.  643;  (with  intent  to  kill)  Reg.  v.  Smith,  7  Cox 
C.  C.  51.  — Ed. 


SECT,  v.]  DUGDALE   V.    REGINA.  221 

and  entei'ccl  the  liousc,  they  found  that  they  intended  to  take  the 
goods  on  the  behalf  of  Smith.  In  Easter  term  following  all  the  judges 
held  that  the  indietnient  was  not  supported,  there  boing  no  intention  to 
steal,  however  outrageous  the  behavior  of  the  prisoners  was  in  thus 
endeavoring  to  get  back  the  goods  for  Smith. ^ 


DUGDALE  V.  REGINA. 
Quekn's  Bench.    1853. 

[Reported  1  Ellis  (j-  Blackburn,  435.] 

The  defendant  was  indicted  at  the  Middlesex  sessions.  The  indict- 
ment contained  seven  counts.^  The  defendant  having  been  found  guilty, 
judgment  was  passed  upon  him,  separately  upon  each  count,  whereupon 
he  l)rought  error  in  this  court.     Joinder  in  error. 

W.  J.  Metcalfe,  for  the  plaintiff  in  error.  The  question  on  the  fn-st 
and  corresponding  counts  is,  whether  the  procuring  obscene  prints  with 
intent  to  publish  them  be  a  misdemeanoi-  at  common  law.  The  counts 
charge  no  attempt  to  publish.  On  the  second  and  corresponding  counts 
the  question  is,  whether  the  possessing  with  intent  to  publish  be  a  mis- 
demeanor, no  act  at  all  being  charged.'' 

Clarkson,  contra,  was  stopped  by  the  court. 

Lord  Campbell,  C.  J.  We  have  decisions  on  both  sets  of  counts. 
Hex  V.  Heath,  Russ.  &  R.  184,  shows  that  those  counts  cannot  be  sup- 
ported which  merely  charge  a  possession  with  intent  to  publisih;  the 
mere  intent  cannot  constitute  a  misdemeanor  when  unaccompanied 
with  any  act.  The  case  is  precisely  in  point.  But,  as  to  the  counts 
which  charge  a  procuring  with  intent  to  publish,  we  find  that  in  Rex  v. 
Fuller,  Russ.  &  R.  308,  in  Easter  term,  1816,  all  the  judges  were  of 
opinion  that  the  procuring  counterfeit  coin  with  intent  to  utter  was 
a  misdemeanor,  and  that  this  might  be  evidenced  by  the  possession. 
Must  not  the  law  be  the  same  as  to  the  publication  of  indecent  prints? 
The  circulation  of  counterfeit  coin  is  a  statutory  offence  ;  the  circulation 
of  indecent  prints  is  punished  at  common  law  for  the  protection  of 
morals.  The  procuring  of  such  prints  is  an  act  done  in  the  commence- 
HK-nt  of  a  misdemeanor,  the  misdemeanor  being  the  wicked  offence  of 
publishing  obscene  i)rints. 

CoLEKiuGE,  J.  I  am  of  the  same  opinion.  The  law  will  not  take 
notice  of  an  intent  without  an  act.  Possession  is  no  such  act.  lUit 
procuring,  with  the  intent  to  commit  the  misdemeanor,  is  the  first  step 
towards  the  connnitting  of  the  misdemeanor. 

WiGiiTMAN,  J.     I  concur  on  both  punits,     :Mr.  Metcalfe  has  clearly 

1  Ace.  Com.  V.  Newtll,  7  Mass.  2-15.  —  Eu. 
*  Tlie  indictinuiit  is  omittod. 
'  The  aifrumeut  is  omitted. 


000 


UNITED    STATES    V.   KIDDLE. 


[chap.  VL 


shown  that  the  possession  is  not  indictable,  as  not  being  an  act ;  but 
the  procuring  is  an  act. 

Cromptox,  J.     Kex  v.  Fuller,  Russ.  &  R.  308,  is  a  distinct  authority'. 
Judgment  on  the  first  and  corres'ponding  counts  affirmed. 


UNITED  STATES  v.  RIDDLE. 
Supreme  Court  of  tue  United  States.     1809. 

[Reported  5  Crunch,  311.] 

Error  to  the  Circuit  Court  of  the  district  of  Columbia,  which  had 
affirmed  the  sentence  of  the  district  court  restoring  certain  cases  of 
merchandise  which  had  been  seized  b}'  the  collector  of  Alexandria, 
under  the  66th  section  of  the  Collection  Law  of  1799,  vol.  iv.  p.  388,^ 
because  the  goods  were  not  "  invoiced  according  to  the  actual  cost 
thereof,  at  the  place  of  exportation,"  with  design  to  evade  part  of  the 
duties. 

The  goods  were  consigned  hj  a  merchant  of  Liverpool,  in  England, 
to  Mr.  Riddle,  at  Alexandria,  for  sale,  accompanied  b}'  two  invoices ; 
one  charging  them  at  £67  5s.  6f?.,  the  other  at  £132  14s.  9c?.,  with 
directions  to  enter  them  b}-  the  spiall  invoice,  and  sell  them  by  the 
larger.  Mr.  Riddle  delivered  both  invoices  and  all  the  letters  and 
papers  to  the  collector,  and  offered  to  enter  the  goods  in  such  manner 
as  he  should  direct.  The  collector  informed  him  that  he  must  enter 
them  b}'  the  larger  invoice,  which  he  did.  But  the  collector  seized  them 
as  forfeited  under  the  66th  section  of  the  Collection  Law  of  1799,  which 
enacts  that  "  if  any  goods,  wares,  or  merchandise,  of  which  entr}'  shall 
have  been  made  in  the  office  of  a  collector,  shall  not  be  invoiced  accord- 
ing to  the  actual  cost  thereof  at  the  place  of  exportation,  with  design 
to  evade  the  duties  thereupon,  or  any  part  thereof,  all  such  goods,"  &c., 
"shall  be  forfeited."  The  same  section  contains  a  provision  for  the 
appraisement  of  the  goods  by  two  merchants  in  case  the  collector  shall 
suspect  that  the  goods  are  not  invoiced  at  a  sum  equal  to  that  at  which 
the3'  have  been  usually-  sold  in  the  place  from  whence  the}'  were  im- 
ported, with  a  proviso  that  such  appraisement  should  not,  upon  the 
trial,  be  conclusive  evidence  of  the  actual  and  real  cost  of  the  said 
goods  at  the  place  of  exportation. 

Rodney,  Attorney -General  for  the  United  States^  contended  that  as 
the  goods  were  invoiced  lower  than  their  actual  cost,  with  intent  to  de- 
fraud the  revenue,  they  were  not  invoiced  according  to  their  actual  cost 

1  "  If  any  goods,  wares,  or  merchandise,  of  which  entry  shall  have  been  made  in  the 
office  of  a  collector,  sliall  not  be  invoiced  according  to  the  actual  cost  thereof  at  the 
place  of  exportation,  with  design  to  evade  the  duties  thereupon,  or  any  part  thereof,  all 
such  goods,  wares,  or  merchandise,  or  the  value  thereof,  to  be  recovered  of  the  person 
making  entry,  shall  be  forfeited. " —  Ed. 


SECT,  v.]  MORSE   V.   STATE.  223 

with  the  like  intent;  find  the  goods  having  been  actually  entered, 
ultliough  not  by  the  fraudulent  invoice,  they  were  within  the  letter  of 
the  law,  and  ought  to  be  condenniod.  Besides,  it  docs  not  appear  that 
the  higher  invoice  was  according  to  the  actual  cost. 

Sioann,  contra.  The  lower  invoice  was  probably  what  the  goods 
cost  the  consignor,  who  manufactured  them.  The  higher  invoice  was 
what  such  goods  were  then  selling  for  at  that  place. 

But  even  if  a  fraud  was  contemplated,  it  was  not  carried  into  effect. 
No  entry  was  made,  nor  attempted  to  be  made  by  the  consignee.  up(jn 
the  false  invoice.  It  was  made  upon  the  true  invoice,  and  in  conformity 
with  the  directions  of  the  collector. 

]\r.\KSHALL,  C.  J.,  delivered  the  opinion  of  the  court  to  the  following 
effect :  — 

The  court  thinks  this  case  too  plain  to  admit  of  argument,  or  to 
require  deliberation.     It  is  not  within  even  the  letter  of  the  law,  and  it 
is  certainly  not  within  its  spirit.     The  law  did  not  intend  to  punish  the 
intention,  but  the  attempt  to  defraud  thcj^v^nuc. 
~ ■ ■  Sentence  ajfirmed. 


MORSE  y.  STATE. 
Supreme  Court  ok  Ekuoks  ok  Connecticut.     1825. 

[Reported  6  Connecticut,  9] 

This  was  an  information  against  the  plaintiff  in  error,  for  a  violation 
of  the  statute  "concerning  the  students  of  Yale  College,"  passed  in 
May,  1822.^  The  information  alleged  that  the  defendant,  on  the  loth 
of  January,  1824,  gave  credit  to  Washington  Van  Zandt,  then  a  student 
of  Yale  College,  and  under  the  age  of  twenty-one  years,  for  suppers, 
wine  and  other  liquors,  to  the  amount  of  seven  dollars,  witliout  the 
knowledge  of  the  parent  or  guardian  of  Van  Zandt,  and  without  the 
knowledge  or  consent  of  the  officers  of  Yale  College,  or  either  of  them. 

On  the  trial  before  the  county  court  the  defendant  claimed  that  if 
credit  was  given  to  Van  Zandt  by  any  one,  it  was  given  by  Stephen 
Northam,  who  was  the  servant  and  bar-keeper  of  tlie  defendant,  against 
his  express  directions  ;  and  that  the  defendant  could  not  be  responsible 
criminally  for  such  act  of  Northam.  The  court  charged  the  jury  that 
if  they  should  find  that  the  defendant  had  assented  to  Northam's  act  in 
giving  credit  to  Van  Zandt,  after  the  credit  was  given,  it  was  the  same 
as  if  tlie  defendant  had  previously  authorized  the  giving  of  such  credit ; 

1  The  first  section  of  this  act  is  in  the.se  words:  "That  no  person  or  persons  sh.ill 
give  credit  to  any  student  of  Yale  Collej^e,  beinpj  a  minor,  witliout  the  roii<;tnit.  in 
writing,  of  his  parent  or  guardian,  or  of  such  officer  or  otHeers  of  the  college  aa  may  Ihj 
authorized,  by  the  government  thereof,  to  act  in  such  cases,  except  for  wn.shiug  or 
medical  aid."  The  2d  section  inflicts  a  penalty  from  $'J0  to  $300  for  a  violation  of 
the  law. 


224  STATE   V.   MOORE.  [CHAP.  VI. 

and  that  the  defendant  in  that  case  would  be  liable  as  principal,  the 
same  as  if  he  had  been  present,  advising  or  consenting  to  the  giving  of 
such  credit.^ 

The  jury  found  the  defendant  guilty  ;  who  thereupon  filed  a  bill  of 
exceptions,  and  brought  a  writ  of  error ;  which  was  reserved  for  the 
advice  of  the  Supreme  Court  of  Errors. 

HosMER,  C.  J.  From  the  motion  it  is  fairly  to  be  inferred  that  no 
credit  was  given  to  Van  Zandt  by  the  defendant ;  but  by  Northam,  his 
bar-keeper,  only,  without  the  knowledge  or  consent  of  Morse,  and 
against  his  express  directions.  In  the  performance  of  this  act,  Nor- 
tham was  not  the  defendant's  agent.  He  was  not  authorized  to  give 
the  credit,  either  expressly  or  in  the  usual  course  of  his  business ;  but 
was  prohibited  from  doing  it.  Notwithstanding  this,  which  the  court 
below  impliedly  admitted,  the  jurj'  were  charged  that  if  the  defendant 
subsequently  assented  to  the  acts  of  Northam  he  ratified  them  and 
made  them  his  own.  This  was  an  unquestionable  error.  In  the  law  of 
contracts,  a  posterior  recognition,  in  many  cases,  is  equivalent  to  a 
precedent  command  ;  but  it  is  not  so  in  respect  of  crimes.  The  de- 
fendant is  responsible  for  his  own  acts,  and  for  the  acts  of  others  done 
by  his  express  or  implied  command,  but  to  crimes  the  maxim  Omtiis 
ratihabitio  i^etrotrahitur  et  mandato  eqxdparatur  is  inapplicable. 

In  cases  admitting  of  accessories,  a  subsequent  assent  merel}'  would 
not  render  a  person  an  accessory.  Judgment  to  he  reversed. 


STATE  V.   MOORE. 
Superior  Court  of  Judicature  of  New  Hampshire.     1841. 

[Reported  12  New  Hampshire,  42.] 

Indictment  for  breaking  and  entering  the  house  of  Isaac  Paddleford, 
at  Lyman,  in  the  night  time,  on  the  19th  day  of  November,  1840,  with 
intent  to  steal,  and  stealing  therefrom  certain  pieces  of  money. 

It  appeared  in  evidence  that  the  prisoner  went  to  the  house,  which 
is  a  public  house,  and  asked  for,  and  obtained  lodging  for  the  night, 
and  that  he  took  the  money  from  a  box  in  a  desk  in  the  bar-room,  in 
the  course  of  the  night. 

The  jury  were  instructed  that  upon  this  indictment  the  prisoner 
might  be  convicted  of  burglary,  of  entering  in  the  night  time  and  steal- 
ing, or  of  larceny  ;  that  if  the  door  of  the  bar-room  were  shut,  and  the 
prisoner  left  his  own  room  in  the  night  time,  and  opened  the  door  of 
the  bar-room,  or  any  other  door  in  his  way  thereto,  except  his  own 
door,  and  stole  the  money,  he  was  guilty  of  burglary  ;  but  that  if  he 
left  his  own  room  in  the  night,  and  stole  the  money  from  the  bar-room, 

1  Only  so  much  of  the  case  as  relates  to  this  point  is  given.  —  Ed. 


SECT,  v.]  STATE   V.    MOORE.  22.5 

without  opening  any  door  on  his  way  thereto,  except  his  own  door,  he 
was  guilty  of  entering  in  the  niglit  time  and  stealing. 

The  jury  found  the  prisoner  guilty  of  entering  in  the  night  time  and 

stealing. 

The  counsel  for  the  prisoner  contended  that  under  this  indictment 
the  prisoner  could  not  be  convicted  of  the  offence  of  which  he  wa.s 
found  guilty. 

He  also  contended  that  the  prisoner,  being  a  guest,  and  having 
entered  the  house  with  the  assent  of  the  owner,  if  guilty  at  all  upon 
this  evidence,  was  guilty  of  larceny  only ;  and  he  moved  to  set  aside 
the  verdict,  and  for  a  new  trial,  for  the  reasons  aforesaid. 

Gove,  Attorney-General,  for  the  State. 

Goodall,  for  the  prisoner. 

Gilchrist,  J.^  It  is  said  that,  as  the  prisoner  was  lawfully  in  the 
house,  he  cannot  be  convicted  of  the  offence  of  entering  in  the  night 
time  with  intent  to  steal. 

It  is  clear  that  the  prisoner  had  a  legal  authority  to  enter  the  house, 
without  any  special  permission  for  that  purpose  from  the  owner  or 
landlord.  If  an  innkeeper,  or  other  victualler,  hangs  out  a  sign,  and 
opens  his  house  for  travellers,  it  is  an  implied  engagement  to  entertain 
all  persons  who  travel  that  way  ;  and  upon  this  universal  assumpsit  an 
action  on  the  case  will  lie  against  him  for  damages,  if  he,  without  good 
reason,  refuses  to  admit  a  traveller.  3  Bl.  Com.  166.  And  an  indict- 
ment at  common  law  lies  against  an  innkeeper  if  he  refuses  to  receive 
a  guest,  he  having  at  that  time  room  in  his  house.  If  the  traveller 
conducts  properly,  he  is  bound  to  receive  him,  at  whatever  hour  of  the 
night  he  may  arrive.     Rex  v.  Ivens,  7  C.  &  P.  213. 

An  innkeeper,  holding  out  his  inn  "  as  a  place  of  accommodation 
for  travellers,  cannot  prohibit  persons  who  come  under  that  character, 
in  a  proper  manner,  and  at  suitable  times,  from  entering,  so  long  as 
he  has  the  means  of  accommodation  for  them."  Markham  v.  Brown, 
8  N.  H.  Rep.  528.  As  he  has  authority  to  enter  the  house,  so  he  may 
enter  an}'  of  the  common  public  rooms.  Markham  v.  Brown.  The 
bar-room  of  an  inn  is,  from  universal  custom,  the  most  public  room  in 
the  house ;  and  whether  a  traveller  may,  without  permission,  enter 
any  of  the  private  rooms  or  not,  he  has  clearly  a  right  to  enter  the 
bar-room. 

If,  after  having  made  an  entry  into  the  house  by  authority  of  law,  he 
commit  a  trespass,  he  may  be  held  civilly  responsible  as  a  trespasser 
ab  initio.  This  principle  has  always  been  recognized  since  the  decision 
of  The  Six  Carpenters'  Case,  8  Coke,  290. 

The  prisoner,  therefore,  had  a  right  to  enter  the  inn,  and  the  bar- 
room ;  and  the  question  arises,  whether  the  larceny  committed  in  the 
bar-room  can  relate  back,  and  give  a  character  to  the  entry  into  the 
house,  so  as  to  make  it  criminal,  and  the  prisoner  punishable  for  it, 

1  Part  only  of  the  opinion  is  given. 
16 


226  STATE   V.   MOORE.  [CHAP.  V. 

upon  reasoning  similar  to  that  which,  in  a  civil  action,  would  render 
him  liable  as  a  trespasser  ab  initio.  Except  the  inference  that  may 
lawfully  be  made  from  the  act  of  larceny,  there  is  no  evidence  that  he 
entered  with  an}'  illegal  purpose,  or  a  felonious  intent. 

Where  the  law  invests  a  person  with  authority  to  do  an  act,  the  con- 
sequences of  an  abuse  of  that  authority  by  the  party  should  be  severe 
enough  to  deter  all  persons  from  such  an  abuse.  But  has  this  "  policy-, 
of  the  law  "  ever  been  extended  to  criminal  cases  ?  "We  are  not  aware 
that  it  has.  It  is  true  that,  in  order  to  ascertain  the  intent  of  the 
accused,  the  law  often  regards  the  nature  of  the  act  committed.  But 
this  is  generally  such  an  act  as  could  not  have  been  committed  with 
any  other  than  a  criminal  purpose.  Thus,  the  act  of  secretl}'  taking 
tlie  property  of  another,  necessarily  raises  the  presumption  that  the 
part}'  intended  to  steal,  and  this  presumption  stands  until  explained 
by  other  evidence.  In  an  indictment  for  breaking,  etc.,  with  intent  to 
commit  a  felon}',  the  actual  commission  is  so  strong  a  presumptive 
evidence  that  the  law  has  adopted  it,  and  admits  it  to  be  equivalent  to 
a  charge  of  the  intent  in  the  indictment.  But  where  one  lawfully 
enters  a  house,  it  by  no  means  follows  that  because  he  steals,  while 
there,  he  entered  with  that  purpose.  The  act  of  stealing  is  evidence 
of  the  intent  to  steal ;  but  is  hardly  sufficient  to  rebut  the  presumption 
that  where  he  lawfully  entered,  he  entered  for  a  lawful  purpose.  To 
hold  that,  for  a  lawful  entry,  a  party  could  be  punished,  because,  after 
such  entry,  he  does  an  unlawful  act,  would  be  to  find  him  guilty  of  a 
crime  by  construction  ;  a  result  which  the  law,  in  its  endeavors  always 
to  ascertain  the  real  intention  of  the  accused,  invariably,  in  theory, 
avoids,  and  which  has  seldom,  in  modern  times,  happened  in  practice. 

A  case  is  put  by  Lord  Hale,  the  reasoning  of  which  is  analogous  to 
that  we  have  used  in  this  case.  ''  It  is  not  a  burglarious  breaking  and 
entry,  if  a  guest  at  an  inn  open  his  own  chamber  door,  and  takes  and 
carries  away  his  host's  goods,  for  he  has  a  right  to  open  his  oion  door, 
and  so  not  a  burglarious  breaking."     1  Hale  P.  C.  553,  554. 

If  a  burglary  could  not  be  committed  because  the  party  had  a  right 
to  open  his  own  door,  notwithstanding  the  subsequent  larceny,  the 
same  principle  would  seem  to  be  applicable  here,  where  the  prisoner 
had  a  right  to  enter  the  house,  and  where,  by  parity  of  reasoning, 
his  subsequent  larceny  would  not  make  his  original  entry  unlawful. 

For  these  reasons,  the  judgment  of  the  court  is  that  the  verdict  be 
set  aside  and  a 

New  trial  granted. 


SECT.  V.l  UNITED   STAXIlS   V.   FOX.  227 

UNITED   STATES   v.  FOX. 

SUPKEME    COUKT   OF   THE    UNITED    STATES.      1877. 
{Reported  95  United  Stales,  670.] 

On  a  certificate  of  divi3ion  in  opinion  between  the  judges  of  the  Cir- 
cuit Court  of  the  United  States  for  the  Southern  District  of  New  York. 

In  November,  1874,  the  defendant  filed  a  petition  in  bankruptcy  in 
the  District  Court  for  the  Southern  District  of  New  York.  In  Marcli, 
187G,  he  was  indicted  in  the  Circuit  Court  for  that  district  for  alleged 
offences  against  the  United  States,  and,  among  others,  for  the  oflfence 
described  in  the  ninth  subdivision  of  s.  5132  of  the  Revised  Statutes, 
which  provides  that  "every  person  respecting  whom  proceedings  in 
bankruptcy  are  commenced,  either  upon  his  own  petition  or  that  of  a 
creditor,"  who,  within  three  months  before  their  commencement,  "  under 
the  false  color  and  pretence  of  carrying  on  business,  and  dealing  in  the 
ordinary  course  of  trade,  obtains  on  credit  from  any  person  any  goods 
or  chattels  with  intent  to  defraud,"  shall  be  punislied  by  imprisonment 
for  a  period  not  exceeding  three  years. 

The  indictment,  among  other  things,  charged  the  defendant  with 
having,  within  three  months  previous  to  the  commencement  of  his  pro- 
ceedings in  bankruptcy,  purchased  and  obtained  on  credit  goods  from 
several  merchants  in  tlie  city  of  New  York,  upon  the  pretence  and  rep- 
resentation of  carrying  on  business  and  dealing  in  the  ordinary  course 
of  trade  as  a  manufacturer  of  clothing;  whereas  he  was  not  carrying 
on  business  in  the  ordinary  course  of  trade  as  such  manufacturer,  but 
was  selling  goods  to  some  parties  by  the  piece  for  cost,  and  to  other 
parties  at  auction  for  less  than  cost,  and  that  these  pretences  and  rep- 
resentations were  made  to  defraud  the  parties  from  whom  the  goods 
were  purchased. 

The  defendant  was  convicted  ;  and,  upon  a  motion  in  arrest  of  judg- 
ment, the  judges  holding  the  Circuit  Court  were  opposed  In  opiMlon, 
and  have  certified  to  this  court  the  question  upon  which  they  dllfered. 
That  question  is  thus  stated  in  the  certificate  :  — 

"  If  a  person  shall  engage  in  a  transaction  which,  at  the  time  of  Its 
occurrence,  is  not  a  violation  of  any  law  of  the  United  States,  to  wit, 
the  obtaining  goods  upon  credit  by  false  pretences,  and  if,  subsequently 
thereto,  proceedings  in  bankruptcy  shall  be  commenced  respecting  him, 
is  it  within  the  constitutional  limits  of  congressional  legislation  to  sub- 
ject him  to  punishment  for  such  transaction  considered  in  connection 
with  the  proceedings  in  bankruptc}-?" 

Mr.  Assistant  Attorftej/- General  Stnith,  for  the  United  States. 

Mr.  B.  F'.  Tracy,  contra. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  question  presented  by  the  certificate  of  division  does  not  appear 
to  us  ditlicult  of  solution.  Upon  principle,  an  act  which  is  not  an 
offence  at  the  time  it  is  committed  cannot  become  such  by  anv  subse- 


228  UNITED   STATES  V.    FOX.  [CHAP.  YL 

quent  independent  act  of  the  party  with  which  it  has  no  connection. 
B}'  the  clause  in  question,  the  obtaining  of  goods  on  credit  upon  false 
pretences  is  made  an  offence  against  the  United  States,  upon  the  hap- 
pening of  a  subsequent  event,  not  perhaps  in  the  contemplation  of  the 
party,  and  which  may  be  brought  about,  against  his  will,  by  the  agenc}' 
of  another.  The  criminal  intent  essential  to  the  commission  of  a  public 
offence  must  exist  when  the  act  complained  of  is  done ;  it  cannot  be 
imputed  to  a  party  from  a  subsequent  independent  transaction.  There 
are  cases,  it  is  true,  where  a  series  of  acts  are  necessar}'  to  constitute 
an  offence,  one  act  being  auxiliary  to  another  in  carrying  out  the  crimi- 
nal design.  But  the  present  is  not  a  case  of  that  kind.  Here  an  act 
which  may  have  no  relation  to  proceedings  in  bankruptcy  becomes 
criminal,  according  as  such  proceedings  ma}-  or  may  not  be  subsequentl}' 
taken,  either  b}'  the  part}-  or  b}-  another. 

There  is  no  doubt  of  the  competency  of  Congress  to  provide,  by  suita- 
ble penalties,  for  the  enforcement  of  all  legislation  necessary'  or  proper 
to  the  execution  of  powers  with  which  it  is  intrusted.  And  as  it  is 
authorized  "to  establish  uniform  laws  on  the  subject  of  bankruptcies 
throughout  the  United  States,"  it  may  embrace  within  its  legislation 
whatever  may  be  deemed  important  to  a  complete  and  effective  bank- 
rupt system.  The  object  of  such  a  system  is  to  secure  a  ratable 
distribution  of  the  bankrupt's  estate  among  his  creditors  when  he  is 
unable  to  discharge  his  obligations  in  full,  and  at  the  same  time  to 
relieve  the  honest  debtor  from  legal  proceedings  for  his  debts,  upon  a 
surrender  of  his  property.  The  distribution  of  the  property  is  the  prin- 
cipal object  to  be  attained.  The  discharge  of  the  debtor  is  merely  inci- 
dental, and  is  granted  only  where  his  conduct  has  been  free  from  fraud 
in  the  creation  of  his  indebtedness  or  the  disposition  of  his  property'. 
To  legislate  for  the  prevention  of  frauds  in  either  of  these  particulars, 
when  committed  in  contemplation  of  bankruptcy',  would  seem  to  be 
within  the  competeuc}'  of  Congress.  Any  act  committed  with  a  view 
of  evading  the  legislation  of  Congress  passed  in  the  execution  of  an}- 
of  its  powers,  or  of  fraudulently  securing  the  benefit  of  such  legislation, 
may  properly  be  made  an  offence  against  the  United  States.  But  au 
act  committed  within  a  State,  whether  for  a  good  or  a  bad  purpose,  or 
whether  with  an  honest  or  a  criminal  intent,  cannot  be  made  an  offence 
against  the  United  States,  unless  it  have  some  relation  to  the  execution 
of  a  power  of  Congress,  or  to  some  matter  within  the  jurisdiction  of 
the  United  States.  An  act  not  having  any  such  relation  is  one  in 
respect  to  which  the  state  can  alone  legislate. 

The  act  described  in  the  ninth  subdivision  of  s.  5132  of  the  Revised 
Statutes  is  one  which  concerns  only  the  state  in  which  it  is  committed ; 
it  does  not  concern  the  United  States.  It  is  quite  possible  that  the 
framers  of  the  statute  intended  it  to  apply  only  to  acts  committed  in 
contemplation  of  bankruptcy  ;  but  it  does  not  say  so,  and  we  cannot 
supply  qualifications  which  the  legislature  has  failed  to  express. 

Our  answer  to  the  question  certified  must  be  in  the  negative  ;  and  it 
will  be  80  returned  to  the  Cixcuit  Court, 


SECT.  V.J  STATE  V.   ASUER.  229 


STATE   V.  AS  HER. 
Supreme  Coukt  ok  Arkansas.    1887. 

[Reported  50  Arkansas,  427.] 

At  the  May  term,  1887,  of  the  Phillips  Circuit  Court,  appellees  were 
indicted  for  a  violation  of  section  1G4")  of  Mansfield's  Digest,  —  i.  e.. 
obtaining  money  under  false  pretences;  Asher  as  principal  and  Fitz- 
patrick  as  accessory.  It  is  charged  in  the  indictment  that  on  the  17th 
April,  1885,  Asher  applied  to  one  J.  P.  Moore  to  purchase  six  mules  ; 
that  he  represented  himself  as  being  the  absolute  owner  of  the  east  half 
of  lot  251,  in  the  city  of  Helena  ;  that  it  was  free  from  incumbrance  ; 
that  he  could  give  a  first  lien  on  same  ;  that  lie  produced  a  deed  of  con- 
veyance from  L.  A.  Fitzpatrick,  reciting  the  full  payment  of  the  pur- 
chase-money, and  ofi'cred  to  secure  the  payment  of  the  purchase-money 
of  the  mules  by  creating  a  first  lien  on  said  lot;  that  Moore  sold  him 
tlie  mules  on  a  credit  to  expire  Nov.  1,  1885,  and  took  a  deed  of  trust 
on  the  lot  to  secure  the  purchase-money  of  the  mules  ;  that  the  deed  of 
trust  was  executed  by  Asher  on  the  17th,  and  was  filed  for  record  on 
the  18th,  day  of  April,  18X5  ;  that  the  sale  of  the  mules  was  made  on 
the  faith  of  the  security  afforded  by  a  first  lien  on  the  east  half  of  said 
lot. 

It  is  further  charged  that  at  the  time  Asher  made  these  representa- 
tions he  had  already  executed  to  said  Fitzpatrick  a  deed  of  trust  upon 
said  east  half  of  said  lot,  to  secure  the  purchase-money  of  same,  which 
was  more  than  the  value  of  the  lot ;  that  said  lot  was  not  free  from 
incumbrance  ;  and  that  Asher  falsely  made  the  representation  that  he 
could  give  a  first  lien  on  said  half-lot  to  deprive  Moore  of  his  property  ; 
that  Fitzpatrick's  deed  of  trust  was  filed  for  record  on  the  17th  day  of 
April,  1885.     Fitzpatrick  is  indicted  jointly  with  him  as  accessory. 

At  the  November  term,  1887,  of  the  court,  the  defendant  demurred 
to  the  indictment;  the  demurrer  was  sustained,  and  the  State  appeals. 

CoCKKiLL,  C.  J.  (after  stating  the  facts  as  above  set  forth).  To  con- 
stitute an  ofl!ence  within  the  meaning  of  section  1G45,  Mansfield's  Dijjcst, 
something  of  value  must  be  obtained  by  means  of  a  false  pretence  with 
the  intent  to  defraud.  To  obtain  goods  with  the  intent  to  defraud  is 
not  enough.     It  must  be  accomi)lished  bv  a  false  pretence. 

By  the  terms  of  the  statute  the  pretence  must  be  false.  And  the  doc- 
trine undoubtedly  is,  that  if  it  is  not  false,  though  believed  to  be  so  by 
the  person  employing  it,  it  is  insufficient.  2  Bish.  Cr.  Law,  s.  417.  The 
false  pretence  charged  in  this  case  is  Asher's  represent.ation  that  the 
mortgage,  upon  the  security  of  which  he  got  the  mules  from  Moore, 
was  the  first  lien  on  the  land.  If  the  representation  is  true,  thoro  is  no 
foundation  for  this  prosecution,  however  reproheiisil)le  Asher's  motive 
may  have  been,  because  the  false  pretence  would  not  be  established. 
Now,  construing  all  the  allegations  of  the  indictment  together,  is  it  shown 


230  STATE    V.   ASHER.  [CHAP.  YI. 

that  the  representation  was  false  ?  It  is  charged  that  Asher  had  previ- 
ously executed  a  mortgage  to  his  co-defendant,  Fitzpatrick,  for  the  full 
value  of  the  land  and  that  it  was  the  prior  lien  ;  but  it  is  also  charged 
that  Fitzpatrick  counselled  Asher  to  make  the  representation  that  the 
land  was  free  from  incumbrance  and  aided  him  in  obtaining  the  mules 
from  Moore  on  the  faith  of  it.  The  demurrer  admits  that  these  allega- 
tions are  true.  Being  true,  the  legal  conclusion  is  that  Fitzpatrick 
waived  the  priority  of  his  lien  and  is  estopped  from  asserting  it  against 
Moore.  Scott  v.  Orbison,  21  Ark.  202  ;  Gill  v.  Hardin,  48  Ark.  412  ; 
Shields  v.  Smith,  37  Id.  47. 

Asher's  representation  that  Moore's  mortgage  was  the  prior  lien  was 
therefore  true.  Moore  got  just  what  he  bargained  for,  according  to  the 
allegations  of  the  indictment,  and  he  has  not,  therefore,  been  injured  in 
any  way.  The  statutory  offence  has  not  been  committed.  Morgan 
V.  State,  42  Ark.  131.  It  is  not,  as  counsel  for  the  State  argues,  an 
attempt  to  have  an  offence  condoned  b}-  repairing  the  injur}-  done  in  its 
commission.    There  has  been  no  criminal  offence. 

Moore  might  have  been  injured  by  the  transaction  if  Fitzpatrick's 
mortgage-note  had  been  negotiated  according  to  the  law  merchant  and 
assigned  to  an  innocent  holder  for  value  before  maturity.  But  there  is 
no  allegation  of  the  existence  of  either  of  these  facts,  and  there  is  no 
presumption  that  that  state  of  facts  exists.  People  v.  Stone,  11  Wheat. 
182-190. 

Affirm. 


■--.^ 


SECT.  L]  M'NAGHTEN'S   CASK.  231 


CHArTER  VII. 

INTENT  AS   AFFECTED  BY  CIRCUMSTANCES. 

SECTION   I. 

Insanity. 

(a)  Tkst   ok   Insanity. 

M'NAGHTEN'S   CASE. 
Answer  of  the  Judges  to  the  House  of  Lords.     1843. 

[Reported  10  Clark  <$•  Finnelly,  200.] 

The  prisoner  had  been  indicted  for  the  murder  of  Edward  Drura- 
moud.^  The  prisoner  pleaded  '•  Not  guilty."  Evidence  having  been 
given  of  the  fact  of  the  shooting  of  Mr.  Drunimond,  and  of  his  death 
in  consequence  thereof,  witnesses  were  called  on  the  part  of  the  pris- 
oner to  prove  that  he  was  not,  at  the  time  of  committing  the  act,  in 
a  sound  state  of  mind. 

LuKD  Chief  Justice  Tindal  (in  his  charge).  The  question  to  be 
determined  is,  whetlier  at  the  time  the  act  in  question  was  committed, 
the  prisoner  had  or  had  not  the  use  of  his  understanding,  so  as  to 
know  that  he  was  doing  a  wrong  or  wicked  act.  If  the  jurors  should 
be  of  opinion  that  the  prisoner  was  not  sensible,  at  the  time  he  com- 
mitted it,  that  he  was  violating  the  laws  both  of  God  and  man,  then 
lie  would  be  entitled  to  a  verdict  in  his  favor  :  but  if,  on  the  contrary, 
they  were  of  opinion  that  when  he  committed  the  act  lie  was  in  a 
80uud  state  of  mind,  then  their  verdict  must  be  against  him. 

Verdict^  Not  guilti/,  on  the  ground  of  insanittj. 

This  verdict,  and  the  question  of  the  nature  and  extent  of  the  un- 
soundness of  mind  which  would  excuse  the  commission  of  a  felony  of 
this  sort  having  been  made  the  subject  of  debate  in  the  House  of 
Lords,  it  was  determined  to  take  the  opinion  of  the  judges  on  t\w 
law  governing  sucii  cases.  Accordingly  the  judges  attcndeil  tho 
House  of  Lords;  when  (no  argument  having  been  had)  questions  of 
law  were  propounded  to  them. 

Loud  Chief  Justice  Tindal.  My  Lords,  her  Majesty's  judges 
(with  the  exception  of  Mr.  Justice  Manic,  who  has  stated  his  opin- 
ion to  your  Lordships),  in  answering  the  quostic^ns  proi>osed  to  them 
by  your  Lordships'  House,  think  it  right,  in  the  first  place,  to  stAle 
1  The  statement  of  facts  in  this  case  hiii>  U-i-n  aKiidged. 


232  m'naghten's  case.  [chap.  vii. 

that  they  have  forborne  entering  into  any  particular  discussion  upon 
these  questions,  from  the  extreme  and  almost  insuperable  difficulty  of 
applying  those  answers  to  cases  in  which  the  facts  aie  not  brought 
judicially  before  them.  The  facts  of  each  particular  case  must  of 
necessity  present  themselves  with  endless  variety,  and  witli  every 
shade  of  difference  in  each  case ;  and  as  it  is  their  duty  to  declare  the 
law  upon  each  particular  case,  on  facts  proved  before  them,  and  after 
hearing  argument  of  counsel  thereon,  they  deem  it  at  once  impracti- 
cable, and  at  the  same  time  dangerous  to  the  administration  of  justice, 
if  it  were  practicable,  to  attempt  to  make  minute  applications  of  the 
principles  involved  in  the  answers  given  by  them  to  your  Lordships' 
questions. 

They  have  therefore  confined  their  answers  to  the  statement  of  that 
which  they  hold  to  be  the  law  upon  the  abstract  questions  proposed 
by  your  Lordships ;  and  as  they  deem  it  unnecessary,  iu  this  par- 
ticular case,  to  deliver  their  opinions  seriatim,  and  as  all  concur  in 
the  same  opinion,  they  desire  me  to  express  such  theii*  unanimous 
opinion  to  your  Lordships. 

The  first  question  proposed  by  your  Lordships  is  this :  "  What  is 
the  law  respecting  alleged  crimes  committed  by  persons  afflicted  with 
insane  delusion  in  respect  of  one  or  more  particular  subjects  or  per- 
sons ;  as,  for  instance,  where  at  the  time  of  the  commission  of  the 
alleged  crime  the  accused  knew  he  was  acting  contrary  to  law,  but  did 
the  act  complained  of  with  a  view,  under  the  influence  of  insane  delu- 
sion, of  redressing  or  revenging  some  supposed  grievance  or  injury, 
or  of  producing  some  supposed  public  benefit?" 

In  answer  to  which  question,  assuming  that  yom  Lordships'  in- 
quiries are  confined  to  those  persons  who  labor  under  such  partial 
delusions  only,  and  are  not  in  other  respects  insane,  we  are  of  opinion 
that,  notwithstanding  the  party  accused  did  the  act  complained  of 
with  a  view,  under  the  influence  of  insane  delusion,  of  redressing  or 
revenging  some  supposed  grievance  or  injury,  or  of  producing  some 
public  benefit,  he  is  nevertheless  punishable  according  to  the  nature 
of  the  crime  committed,  if  he  knew  at  the  time  of  committing  such 
crime  that  he  was  acting  contrary  to  law  ;  by  which  expression  we 
understand  your  Lordships  to  mean  the  law  of  the  land. 

Your  Lordships  are  pleased  to  inquire  of  us,  secondly  :  "  What  are 
the  proper  questions  to  be  submitted  to  the  jury,  where  a  person  al- 
leged to  be  afflicted  with  insane  delusion  respecting  one  or  more 
particular  subjects  or  persons  is  charged  with  the  commission  of  a 
crime  (murder,  for  example),  and  insanity  is  set  up  as  a  defence?" 
And,  thirdly:  "In  what  terms  ought  the  question  to  be  left  to  the 
jury  as  to  the  prisoner's  state  of  mind  at  the  time  when  the  act  was 
committed  ?  "  And  as  these  two  questions  appear  to  us  to  be  more 
conveniently  answered  together,  we  have  to  submit  our  opinion  to 
be,  that  the  jurors  ought  to  be  told  in  all  cases  that  every  man  is  to 
be  presumed  to  be  sane,  and  to  possess  a  sufficient  degree  of  reason 


SKCT.  I.]  M'xAGHTEN'S   CASE.  233 

to  be  rcspousible  for  his  crimes,  imtil  the  contrary  he  proved  to  their 
satisfaction  ;  and  that  to  establish  a  defence  on  the  ground  of  in- 
sanity, it  must  be  clearly  proved  that,  at  the  time  of  tlie  committing 
of  the  act,  the  i)arty  accused  was  laboring  under  such  a  defect  of 
reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing ;  or,  if  he  did  know  it,  that  he  did  not 
know  he  was  doing  what  wa8  wrong.'  The  mode  of  putting  the 
latter  part  of  the  question  to  the  jury  on  these  occasions  has  gener- 
ally been,  whether  the  accused  at  the  time  of  doing  the  act,  knew 
the  difference  between  right  and  wrong  :  which  mode,  though  rarely, 
if  ever,  leading  to  any  mistake  with  the  jury,  is  not,  as  we  conceive, 
80  accurate,  when  put  generally  and  in  the  abstract,  as  when  put  with 
reference  to  the  party's  knowledge  of  right  and  wrong  in  respect  to 
the  very  act  with  which  he  is  charged.  If  the  question  were  to  be 
put  as  to  the  knowledge  of  the  accused  solely  and  exclusively  with 
reference  to  the  law  of  the  land,  it  might  tend  to  confound  the  jury, 
by  inducing  them  to  believe  that  an  actual  knowledge  of  the  law  of 
the  land  was  essential  in  order  to  lead  to  a  conviction  ,  whereas  the 
law  is  administered  upon  the  princi[>le  that  every  one  must  be  taken 
conclusively  to  know  it,  without  proof  that  he  does  know  it.  If  the 
accused  was  conscious  that  the  act  was  one  which  he  ought  not  to  do, 
and  if  that  act  was  at  the  same  time  contrary  to  the  law  of  the  laud, 
he  is  punishable  ;  and  the  usual  course  therefore  has  been  to  leave 
the  question  to  the  jury,  whether  the  party  accused  had  a  sullicient 
degree  of  reason  to  know  that  he  was  doing  an  act  that  was  wrong  ; 
and  this  course  we  think  is  correct,  accompanied  with  such  observa- 
tions and  explanations  as  the  circumstances  of  each  particular  ease 
may  require. 

The  fourth  question  which  your  Lordships  have  proiiosed  to  us  is 
this:  ''If  a  person  under  an  insane  delusion  as  to  existing  facts 
commits  an  oflfeuce  in  consequence  thereof,  is  he  thereby  excused  ? " 
To  which  question  the  answer  must  of  course  depend  on  the  nature 
of  the  delusion  ;  but  making  the  same  assumption  as  we  did  before, 
namely,  tliat  he  labors  under  such  partial  delusions  only,  and  is  not 
in  other  respects  insane,  we  think  he  must  be  considered  in  the  same 

'  '•  I  think  that  any  one  would  fall  within  the  description  in  question  who  was 
deprived  by  disease  affecting  the  mind  of  the  jwwer  of  y)assinK  a  rational  judgment  on 
the  moral  character  of  tho  act  which  he  ni.iuiL  to  do.  .Supjvose,  for  insUnce,  that  by 
reason  of  disease  of  the  bniin  a  man's  mind  is  filled  with  delusions  which,  if  tnie. 
woulil  not  justify  or  excuse  Ids  proposed  act,  but  which  in  themsulvt-s  are  so  wild  and 
astonishing  as  to  make  it  imi)Ossible  for  him  to  rea-son  al>out  them  calmly,  or  to 
reason  calmly  on  matters  connetted  with  them.  Supj>ose,  too,  that  the  succession  of 
insane  thoughts  of  one  kind  and  another  is  so  rapid  as  to  confuse  him  ;  and  finally, 
suppose  that  his  will  is  wt-akeneil  by  his  dist-ase,  that  he  is  une<iual  to  the  effort  of 
calm  sustained  thought  u|)on  any  subject,  and  especially  u|>ou  subji-ct^  connect*-*!  with 
hia  delusion  ;  can  ho  be  said  to  know  or  have  a  capacity  of  knowing  that  the  act  which 
he  projwses  to  do  is  wrong  '  I  should  sav  he  could  not."  2  .Stephen  Hist.  Crim. 
Uw,  164.  —  Ki). 


234  KEGINA   V.    HAYNES.  [CHAP.  VIL 

situation  as  to  responsibility  as  if  the  facts  witli  respect  to  which  the 
deUision  exists  were  real.  For  example,  if  under  the  influence  of  his 
delusion  he  supposes  another  man  to  be  in  the  act  of  attempting  to 
take  away  his  life,  and  he  kills  that  man,  as  he  supposes,  in  self- 
defence,  he  would  be  exempt  from  punishment.  If  his  delusion  was 
that  the  deceased  had  inflicted  a  serious  injury  to  his  character  and 
fortune,  and  he  killed  him  in  revenge  for  such  supposed  injury,  he 
would  be  liable  to  punishment.^ 


REGINA  V.  HAYNES. 
Winchester  Assizes.    1859. 

[Reported  1  Foster  ^-  Finlayson,  666.] 

The  prisoner,  a  soldier,  was  charged  with  the  murder  of  Mary 
MacGowan,  at  the  camp  at  Aldershott. 

The  deceased  was  an  "unfortunate  woman"  with  whom  the  prisoner 
had  been  intimate,  and  was  on  the  most  friendly  terms  up  to  the 
moment  of  the  commission  of  the  offence.  No  motive  was  assigned 
for  the  perpetration  of  the  act ;  and  general  evidence  was  given  that 
the  prisoner,  while  in  Canada,  having  seduced  a  young  woman  under 
a  promise  of  marriage,  which  he  had  been  unable  to  fulfil  by  reason 
of  his  regiment  having  been  ordered  home,  his  mind  had  been  much 
affected  by  the  circumstance.^ 

Bramwell,  B.,  to  the  jury.  As  to  the  defence  of  insanity  set  up 
for  the  prisoner,  I  will  read  you  what  the  law  is  as  stated  by  the  judges 
in  answer  to  questions  put  to  them  by  the  House  of  Lords.  {Having 
done  so.)  It  has  been  urged  for  the  prisoner  that  j^ou  should  acquit 
him  on  the  ground  that,  it  being  impossible  to  assign  any  motive  for 
the  perpetration  of  the  offence,  he  must  have  been  acting  under  what 
is  called  a  powerful  and  irresistible  influence  or  homicidal  tendency. 
But  I  must  remark  as  to  that  that  the  circumstance  of  an  act  being 
apparently  motiveless  is  not  a  ground  from  which  you  can  safely  infer 

^  The  answer  to  the  fifth  question  is  omitted.  Maule,  J.  delivered  a  separate 
opinion,  which  he  prefaced  by  stating  that  he  felt  great  difficulty  in  answering  the 
questions  :  first,  because  they  did  not  ap]>ear  to  arise  out  of  a  particular  case,  which 
njight  explain  or  limit  the  generality  of  their  terms  ;  secondly,  because  he  had  heard 
no  argument  on  the  subject  of  the  questions  ;  and  thirdly,  from  a  fear  that  the  an- 
swers might  embarrass  the  administration  of  justice,  when  they  should  be  cited  in 
criminal  trials.  In  reply  to  the  first  question  he  said  that  "  to  render  a  person  irre- 
.•iponsible  for  ciime  on  account  of  unsoundness  of  mind,  the  unsoundness  should  be 
such  as  renders  him  incapable  of  knowing  right  from  wrong."  In  reply  to  the 
second  and  third  questions,  he  said  that  the  matters  referred  to  in  them  were  entirely 
■within  the  discretion  of  the  judge  trying  the  case.  To  the  fourth  question  he  gave 
the  same  answer  as  to  the  first.  —  Ed. 

'  Part  of  the  case,  relating  to  another  point,  is  omittetL 


SECT.  I.]  COMMONWEALTH   V.   KOGERS.  235 

the  existence  of  sucli  an  influence.  Motives  exist  unknown  and  innu- 
merable which  niif^ht  proini)!  the  act.  A  uiorhid  and  restless  (hut 
resistible)  thirst  for  blood  would  itst-lf  be  a  motive  urging  to  sucli  a 
deed  for  its  own  relief  ;  but  if  an  inllucnce  be  so  powerful  as  to  be 
termed  irresistible,  so  much  the  more  reason  is  there  why  we  should 
not  withdraw  any  of  the  safeguards  tending  to  counteract  it.  There 
are  three  powerful  restraints  existing,  all  tending  to  the  assistance  of 
the  person  who  is  suffering  under  such  an  influence,  —  the  restraint  of 
religion,  the  restraint  of  conscience,  and  the  restraint  of  law.  But  if 
the  influence  itself  be  held  a  legal  excuse,  rendering  the  crime  dispun- 
ishable, you  at  once  withdraw  a  piost  powerful  restraint,  —  that  for- 
bidding and  punishing  its  perpetration.  We  must  therefore  return  lo 
the  simple  question  you  have  to  determine,  —  did  the  prisoner  know 
the  nature  of  the  act  he  was  doing ;  and  did  he  know  that  he  wat' 
doing  what  was  wrong?  Guilty.    Sentence^  death. 

The  prisoner  was  reprieved.    -  '-' 


> 


v^ 


COMMONWEALTH  v.  ROGERS. 
Supreme  Judicial  Court  of  Massachusetts.    18i4. 

[Reported  7  Metcalf,  500.] 

The  defendant  was  indicted  for  the  murder  of  Charles  Lincoln, 
Junior,  warden  of  the  state  prison,  on  the  15th  of  June,  1843.* 

The  evidence  was  full  and  uncontradicted  that  the  defendant,  at 
the  time  alleged  in  the  indictment,  was  a  prisoner  in  the  state  prison, 
and  then  and  there  killed  the  warden  of  the  prison  by  stabbing  him  in 
the  neck  with  a  knife.  The  sole  ground  on  which  the  defendant's 
counsel  placed  his  defence  was  that  he  -was  insane  when  he  committed 
the  homicide  ;  and  most  of  the  evidence,  on  both  sides,  related  to  this 
single  point.  The  superintendents  of  several  insane  hospitals  were 
witnesses  in  the  ease,  and  their  testimony  tended  strongly  to  prove 
that  the  defendant,  at  the  time  of  the  homicide,  was  lalwring  under 
that  species  of  insanity  which  is  hereinafter  commented  on  by  the 
chief  justice  in  the  charge  of  the  court  to  the  jury. 

The  opinion  of  the  court  on  the  law  of  the  case  was  given  in  the 
following  charge  to  the  jury  by 

Shaw,  C.  J.  la  order  to  constitute  a  crime,  a  person  must  have 
intelligence  and  capacity  enough  to  have  a  criminal  intent  and  pur- 
[lose  ;  and  if  his  reason  and  mental  powers  are  either  so  deficient  that 
he  has  no  will,  no  conscience  or  controlling  mental  power,  or  if, 
through  the  overwhelming  violence  of  mental  disease  his  intellectual 

*  Part  of  the  case,  not  involving  a  question  of  in'^.in;fy,  is  omittctL 


236  COMMONWEALTH   V.   ROGERS.  [CHAP.  VII. 

power  is  for  the  time  obliterated,  he  is  not  a  responsible  moral  agent, 
and  is  not  punishable  for  criminal  acts. 

But  these  are  extremes  easily  distinguished,  and  not  to  be  mistaken. 
The  difficulty  lies  between  these  extremes,  in  the  cases  of  partial  insan- 
ity, where  the  mind  may  be  clouded  and  weakened,  but  not  incapable 
of  remembering,  reasoning,  and  judging,  or  so  perverted  by  insane 
delusion  as  to  act  under  false  impressions  and  influences.  In  these 
cases,  the  rule  of  law,  as  we  understand  it,  is  this :  A  man  is  not  to 
be  excused  from  responsibility,  if  he  has  capacity  and  reason  sufficient 
to  enable  him  to  distinguish  between  right  and  wrong  as  to  the  par- 
ticular act  he  is  then  doing,  —  a  knowledge  and  consciousness  that  the 
act  he  is  doing  is  wrong  and  criminal,  and  will  subject  him  to  punish- 
ment. In  order  to  be  responsible,  he  must  have  sufficient  power  of 
memory  to  recollect  the  relation  in  which  he  stands  to  others,  and  in 
which  others  stand  to  him  ;  that  the  act  he  is  doing  is  contrary  to  the 
plain  dictates  of  justice  and  right,  injurious  to  others,  and  a  violation 
of  the  dictates  of  duty. 

On  the  contrary,  although  he  may  be  laboring  under  partial  insanity, 
if  he  still  understands  the  nature  and  character  of  his  act,  and  its  con- 
sequences ;  if  he  has  a  knowledge  that  it  is  wrong  and  criminal,  and  a 
mental  power  sufficient  to  apply  that  knowledge  to  his  own  case,  and 
to  know  that,  if  he  does  the  act  he  will  do  wrong  and  receive  pun- 
ishment, —  such  partial  insanity  is  not  sufficient  to  exempt  him  from 
responsibility  for  criminal  acts. 

If,  then,  it  is  proved,  to  the  satisfaction  of  the  jury,  that  the  mind  of 
the  accused  was  in  a  diseased  and  unsound  state,  the  question  will  be 
whether  the  disease  existed  to  so  high  a  degree  that  for  the  time  being 
it  overwhelmed  the  reason,  conscience,  and  judgment,  and  whether 
the  prisoner,  in  committing  the  homicide,  acted  from  an  irresistible 
and  uncontrollable  impulse.  If  so,  then  the  act  was  not  the  act  of 
a  voluntary  agent,  but  the  involuntary  act  of  the  body,  without  the 
concurrence  of  a  mind  directing  it. 

The  character  of  the  mental  disease  relied  upon  to  excuse  the  accused 
in  this  case  is  partial  insanity,  consisting  of  melancholy,  accompanied 
by  delusion.  The  conduct  may  be  in  many  respects  regular,  the  mind 
acute,  and  the  conduct  apparently  governed  by  rules  of  propriety,  and 
at  the  same  time  there  may  be  insane  delusion  by  which  the  mind  is 
perverted.  The  most  common  of  these  cases  is  that  of  monomania^  when 
the  mind  broods  over  one  idea  and  cannot  be  reasoned  out  of  it.  This 
may  operate  as  an  excuse  for  a  criminal  act  in  one  of  two  modes : 
1.  Either  the  delusion  is  such  that  the  person  under  its  influence  has  a 
real  and  firm  belief  of  some  fact,  not  true  in  itself,  but  which,  if  it 
were  true,  would  excuse  his  act,  —  as  where  the  belief  is  that  the  party 
killed  had  an  immediate  design  upon  his  life,  and  under  that  belief 
the  insane  man  kills  in  supposed  self-defence.  A  common  instance  is 
where  he  fully  believes  that  the  act  he  is  doing  is  done  by  the  immedi- 
ate command  of  God,  and  he  acts  under  the  delusive  but  sincere  belief 


\y 


SECT.  I.]  COMMONWEALTH    V.    ROGERS.  237 

tliat  what  he  is  doing  is  by  the  command  of  a  superior  power  which 
supersedes  all  human  laws,  and  tlie  laws  of  nature.  2.  Or  this  state 
of  delusion  indicates  to  an  experienced  person  that  the  mind  is  in  a 
diseased  state  ;  that  the  known  tendency  of  that  diseased  state  of  the 
mind  is  to  break  out  into  sudden  paroxysms  of  violence,  venting  itself 
in  homicide  or  other  violent  acts  towards  friend  or  foe  indiscriminately ; 
so  that,  altliough  there  were  no  previous  indications  of  violence,  yet 
the  subsequent  act,  conuecting  itself  with  the  previous  symptoms  and 
indications,  will  enable  an  experienced  person  to  say  that  tlie  oulijreak 
was  of  such  a  character  that  for  the  time  being  it  must  have  overborne 
memory  and  reason  ;  that  the  act  was  the  result  of  the  disease  and 
not  of  a  mind  capable  of  choosing  ;  in  short,  that  it  was  the  result  of 
uncontrollable  imi)ulse,  and  not  of  a  person  acted  upon  by  motives, 
and  governed  by  the  will. 

The  questions,  then,  in  the  present  case,  will  be  these  :  1.  "Was  there 
such  a  delusion  and  hallucination?  2.  Did  the  accused  act  under  a 
false  but  sincere  belief  that  the  warden  had  a  design  to  shut  him  up, 
and,  under  that  pretext,  destroy  his  life  ;  and  did  he  take  this  means 
to  prevent  it?  3.  Are  the  facts  of  such  a  character,  taken  in  connec- 
tion with  the  opinions  of  the  professional  witnesses,  as  to  induce  the 
jury  to  believe  that  the  accused  had  been  laboring  for  several  days 
under  monomania,  attended  with  delusion  ;  and  did  this  indicate  such 
a  diseased  state  of  the  mind  that  the  act  of  killing  tlie  warden  was  to 
be  considered  as  an  outbreak  or  paroxysm  of  disease,  which  for  the 
time  being  overwhelmed  and  superseded  reason  and  judgment,  so  that 
the  accused  was  not  an  accountable  agent? 

If  such  was  the  case,  the  accused  is  entitled  to  an  acquittal ;  other- 
wise, as  the  evidence  proves  beyond  all  doubt  the  fact  of  killing, 
without  provocation,  by  the  use  of  a  deadly  weapon,  and  attended  with 
circumstances  of  violence,  cruelty,  and  barbarity,  he  must  undoubtedly 
be  convicted  of  wilful  murder. 

The  ordinary  presumption  is  that  a  person  is  of  sound  mind  until 
the  contrary  appears ;  and  in  order  to  shield  one  from  criminal  respon- 
sibility, the  presumption  must  be  rebutted  by  proof  of  the  contrary, 
satisfactory  to  the  jury.  Such  proof  may  arise,  either  out  of  the  evi- 
dence offered  by  the  prosecutor  to  establish  the  case  against  the  accused, 
or  from  distinct  evidence,  ottered  on  his  part ;  in  either  case,  it  must 
be  sufficieut  to  establish  the  fact  of  insanity ;  otherwise,  the  presump- 
tion will  stand. 

The  jury,  after  being  in  consultation  several  hours,  came  into  court, 
and  asked  instructions  upon  these  two  questions:  "  Must  the  jury  be 
satisfied,  beyond  a  doubt,  of  the  insanity  of  the  prisoner,  to  entitle 
him  to  an  acquittal?  And  what  degree  of  insanity  will  amount  to  a 
justification  of  the  offence?" 

In  answer  to  the  first  of  these  questions,  the  chief  justice  repeated 
bis  former  remarks  on  the  same  point,  and  added  that  if  the  prepon- 


238  STATE   V.   RICHARDS.  [CHAP.  VIL 

derance  of  the  evidence  was  in  favor  of  the  insanity  of  the  prisoner, 
the  jury  would  be  authorized  to  find  him  insane.  In  answer  to  the 
second  question,  the  chief  justice  added  nothing  to  the  instructions 
which  he  had  previously  given. 

The  jury  afterwards  returned  a  verdict  of  "  Not  guilty,  by  reason  of 
insanity."  ^ 


STATE  V.   RICHARDS. 
Superior  Court,  Connecticut.     1873. 

[Reported  39  Connecticut,  591.] 

Information  for  burning  a  barn  ;  brought  to  the  Superior  Court  for 
Windham  County  and  tried  to  the  jur}^,  at  its  August  term,  1873,  on 
the  plea  of  not  guilty,  before  Seymour,  J. 

The  defence  was  that  the  prisoner  had  not  sufficient  mental  capacity 
to  be  criminally  responsible  for  the  act.  The  charge  of  the  judge, 
which  sufficiently  states  the  facts  of  the  case,  was  as  follows :  — 

Seymour,  J.  The  evidence  seems  ample  to  warrant  3'ou  in  finding 
that  the  burning  complained  of  was  caused  by  the  prisoner.  Your 
attention  has  been  turned  mainly  to  the  question  whether  the  act  was 
done  with  the  felonious  intent  charged,  and  this  question  depends 
mainl}'  upon  another,  whether  the  accused  has  sufficient  mental  capa- 
city to  warrant  us  in  imputing  to  him  a  felonious  intent. 

That  he  is  considerably  below  par  in  intellect  is  apparent  to  us  alL 
This  is  indicated  by  his  countenance  and  general  appearance. 

The  same  thing  is  indicated  b}'  his  extraordinar}'  conduct  at  the 
fire.  As  the  flames  were  bursting  out  he  was  seen  on  all  fours  crawl- 
ing back  from  under  the  burning  barn,  with  no  clothing  upon  him 
except  his  shirt  and  trousers.  The  day  was  excessively  cold.  He 
remained  some  half-hour,  thus  scantily  clothed,  gazing  stupidly  at  the 
blaze,  until  ordered  into  the  house.  All  this  took  place  in  broad  da}'- 
hght,  in  plain  view  of  Mr.  Gallup's  house. 

But  it  is  undoubtedly*  true,  as  the  attorney  for  the  state  contends, 
that  mere  inferiorit}'  of  intellect  is  no  answer  to  the  prosecution.  We 
are,  therefore,  called  upon  in  this  case  to  decide  an  interesting  and 
difficult  question,  to  wit,  whether  the  accused  has  sufficient  mind  to 
be  held  responsible  as  a  criminal. 

1  **To  punish  a  homicide,  committed  by  the  insane  victim  of  such  dehision,  and 
under  its  resistless  influence,  would  be  punishing  for  what  every  other  man  in  the  same 
condition  would  ever  do,  in  defiance  of  all  penal  consequences ;  and,  therefore,  such 
])Uiiisliment  would  be  useless  and  inconsistent  with  the  preventive  aim  of  all  criminal 
jurisprudence."  —  Robertson,  J.,  in  Smith  v.  Com.,  1  Duv.  224. 

"Whether  passion  or  insunity  was  the  ruling  force  and  controlling  agency  which 
led  to  the  homicide,  —  in  other  words,  whether  the  defendant's  act  was  the  insane  act 
of  an  unsound  mind,  or  the  outburst  of  violent,  reckless,  and  uncontrolled  passion,  in 
a  mind  not  diseased,  —  is  the  practical  question  which  the  jury  should  be  told  to  deter- 
mine." —  Dillon,  C.  J.,  in  State  v,  Felter,  25  Iowa,  67.  —  Ed. 


L 


SECT.  I.]  STATE  V.   RICHARDS.  239 

He  is  not  a  mere  idiot,  nor  does  he  appear  to  be  a  lunatic.  He 
suffers  from  want  of  mind  rather  tlnm  from  dorungement  or  dchision, 
and  tlie  (jiiostiun  is  whether  the  want  of  mind  is  such  as  to  entitle  Inm 
to  acquittal  on  the  ground  of  what  in  law  is  termed  dementia. 

Tliis  inquiry  is  attended  with  inherent  dilliculties.  Our  knowledge 
of  our  own  minds  is  imperfect;  our  knowledge  of  the  precise  menial 
condition  of  another  is  necessarily  still  more  imperfect.  We  as  triers 
arc  oltliged  to  rely  upon  the  evidence  furnished  us  by  witnesses  whose 
means  of  knowledge  are  limited,  and  who  find  great  dilllculty  in  com- 
municating to  us,  on  a  subject  of  this  nature,  what  they  do  know. 

Our  principal  embarrassment  arises,  however,  from  the  want  of  a 
definite  measure  of  mental  capacity.  Eminent  judges  and  learned 
commentators  have  attempted  to  furnish  rules  and  tests  for  the  guid- 
ance of  triers  in  cases  of  this  kind,  but  upon  examination  these  rules 
and  tests  turn  out  to  be  imperfect  and  unsatisfactory. 

It  was  formerly  thought  that  the  jury  might  properly  convict  if  tlie 
accused  had  any  sense  of  right  and  wrong,  or  if  he  was  aware  that 
punishment  would  follow  the  commission  of  an  offence. 

But  children  of  very  tender  years  have  some  sense  of  right  and 
wrong,  and  fully  understand  that  punishment  will  follow  transgression. 
Such  children  are  subjected  b}'  their  parents  to  discipline,  and  are  by 
gentle  punishments  restrained  from  wrong-doing ;  but  our  sense  of 
humanity  would  be  greatly  shocked  at  the  thought  of  subjecting  chil- 
dren to  the  penalties  of  statute  law  because  some  sense  of  right  and 
wrong  and  fear  of  punishment  had  been  developed  in  them. 

So,  again,  it  is  often  said  in  the  books  that  a  person  is  to  be  deemed 
responsible  for  crime  if  he  understands  the  consequences  and  effects  of 
the  act  laid  to  his  charge.  This  is  undoubtedly  and  obviously  true  if 
he  has  such  understanding  and  appreciation  of  consequences  as  per- 
tain to  other  men.  But  if  he  has  less  of  it  than  is  common  to  men 
in  general,  how  much  less  must  it  be  to  escape  responsibility? 

I  think  the  accused  had  some  knowledge  of  the  consequences  of  his 
acts.  He  probabl}'  knew  that  by  igniting  a  match  and  throwing  it 
into  a  hay-mow  a  fire  would  be  kindled  and  that  the  barn  would 
thereby  be  consumed.  He  perhaps  also  had  some  appreciation  of  the 
loss  and  destruction  of  property  which  would  ensue. 

But  I  am  not  willing  to  say  that  some  knowledge  of  consequences, 
however  faint  and  imperfect,  is  sufficient  to  warrant  you  in  convict- 
ing the  prisoner.  I  can  give  you  no  precise  rule,  but  I  think  it  ' 
clear  that  if  the  prisoner's  perception  of  consequences  and  effects 
was  only  such  as  is  common  to  children  of  tender  years  he  ought  to 
be  acquitted. 

And  this  leads  me  to  refer  to  the  rule  adopted  by  an  eminent  Eng- 
lish judge,  Lord  Hale.  He  reasoned  that,  inasmuch  as  children 
under  fourteen  years  of  age  are  jtrima  facie  incapable  of  crime,  im- 
beciles ought  not  to  be  held  responsible  criminally  unless  of  capacity 
equal  to  that  of  ordinary  children  of  that  age. 


240  STATE  V.   RICHARDS.  [CHAP.  VIL 

If  this  test  be  adopted,  the  prisoner  will  upon  the  testimony  be  en- 
titled to  an  acquittal.  The  principal  witnesses  for  the  prosecution  say 
that  he  is  inferior  in  intellect  to  children  of  ten  years  of  age,  and  sev- 
eral very  intelligent  witnesses  for  the  defence  testify  that  they  are 
acquainted  with  many  children  of  six  years  who  are  his  superiors  in 
mental  capacity. 

I  am  inclined  to  recommend  Lord  Hale's  rule  to  your  adoption, 
not  however  without  qualifications  which  I  think  it  important  to 
observe. 

And  first,  this  test,  like  all  others  which  I  know  of,  is  imperfect. 

Probably  no  two  of  us  have  the  same  idea  of  the  capacity  of  children 
of  fourteen  j-ears  of  age ;  and  then  there  is  this  further  difficulty,  that 
there  can  be  no  accurate  comparison  in  detail  between  the  healthy  and 
properly  balanced,  though  immature,  mind  of  a  child,  and  the  un- 
healthy, abnormal,  and  shrivelled  intellect  of  an  imbecile.  The  com- 
parison therefore  is  only  of  the  general  result  in  their  respective 
appreciation  of  right  and  wrong  and  of  consequences  and  effects. 

This  further  consideration  ought  also  to  be  borne  in  mind:  that 
though  in  modern  times  persons  under  fourteen  are  seldom  subjected 
to  the  penalties  of  the  criminal  code,  yet  in  law  children  between  seven 
and  fourteen  may  be  subjects  of  punishment  if  they  are  shown  to  be 
of  sufficient  capacity  to  commit  crimes.  In  applying  Lord  Hale's 
rule  therefore,  the  child  to  be  taken  as  the  standard  ought  not  to  be 
one  who  has  had  superior  advantages  of  education,  but  should  rather 
be  one  in  humble  life,  with  only  ordinary  training. 

And  after  all,  gentlemen,  you  see  that  I  can  furnish  you  with  no 
definite  measure  of  mental  capacity  to  apply  to  the  prisoner.  The 
whole  matter  must  be  submitted  to  your  sound  judgment.  You  will 
say  whether  the  prisoner  has  such  knowledge  of  right  and  wrong,  and 
such  appreciation  of  the  consequence  and  effects  of  his  acts,  as  to  be 
a  proper  subject  of  punishment.  Opinions  on  this  subject  have  been 
expressed  by  most  of  the  witnesses  who  have  testified.  These  opinions 
depend  for  their  value  mainly  upon  the  facts  with  which  they  are 
connected.  You  have  the  advantage  of  being  able  to  compare  with 
each  other  all  the  facts  which  have  been  brought  to  your  notice  bear- 
ing upon  the  prisoner's  mental  condition.  You  will  look  carefully  at 
alf  these  facts.  The  history  of  the  prisoner's  life  is  somewhat  signifi- 
cant. From  early  childhood  it  has  been  spent  in  almhouses,  sub- 
jected to  constant  constraint.  In  the  most  ordinary  acts  of  his  life  he 
has  been  governed  by  the  superior  will  of  others  to  whose  care  he 
has  been  committed.  He  has,  it  appears,  been  seldom  left  to  the 
free  guidance  of  his  own  judgment.  When  so  left,  he  seems  to  have 
acted  without  forecast,  under  the  pressure  of  immediate  wants  and 
impulses. 

If  you  acquit  the  prisoner  on  the  ground  of  want  of  mental  capacity 
you  will  so  say  in  your  verdict,  in  order  that  the  prisoner  may  in  that 
eyent  have  the  benefit  under  our  statute  of  a  home  where  he  will  be 


SECT.  I.]  FLANAGAN    V,    PEOPLE,  241 

kindly  cared  for,   but  kept  under  such  restraints  as   to  prevent  his 
doing  injury  to  the  persons  or  property  of  others. 

The  jury  acquitted  the  i)risoner,  stating  in  their  verdict  that  the 
acquittal  was  on  the  ground  of  want  of  mental  capacity.^ 


FLANAGAN   v.   PEOPLE 
Court  of  Appeals  of  New  York.     1873. 

[Reported  52  New  York,  467] 

Andrews,  J.  The  judge,  among  other  things,  charged  the  jury  that, 
"  to  estabhsh  a  defence  on  the  ground  of  insanity,  it  must  be  clearly 
proven  that,  at  the  time  of  committing  the  act  (the  subject  of  the  in- 
dictment), the  party  accused  was  laboring  under  such  a  defect  of  reason 
from  disease  of  tlie  mind  as  not  to  know  the  nature  and  qualit\'  of  the 
act  he  was  doing ;  and,  if  he  did  know  it,  that  he  did  not  know  he 
was  doing  wrong ; "  and  to  this  part  of  the  charge  the  prisoner,  by  his 
counsel,  excepted. 

The  part  of  the  charge  excepted  to  was  in  the  language  employed 
b}'  TiNDAL,  C.  J.,  in  McNaghten's  Case,  10  Clarke  &  Fin.  210,  in  the 
response  of  the  English  judges  to  the  questions  put  to  them  by  the 
House  of  Lords  as  to  what  instructions  should  be  given  to  the  jury,  on 
a  trial  of  a  prisoner  charged  with  crime,  when  the  insane  delusion  of 
the  prisoner,  at  the  time  of  the  commission  of  the  alleged  act,  was 
interposed  as  a  defence. 

All  the  judges,  except  one,  concurred  in  the  opinion  of  Tindal,  C.  J., 
and  the  case  is  of  the  highest  authority ;  and  the  rule  declared  in  it  has 
been  adhered  to  by  the  English  courts. 

Maule,  J.,  gave  a  separate  opinion,  in  which  he  declared  that,  to 
render  a  person  irresponsible  for  crime  on  account  of  unsoundness  of 
mind,  the  unsoundness  should,  according  to  the  law,  as  it  has  long  been 
understood  and  held,  be  such  as  to  render  him  incapable  of  knowing 
right  from  wrong. 

In  the  case  of  The  People  v.  Bodine,  4  Denio,  9,  tlie  language  of 
IiNDAL,  C.  J.,  in  the  McNaghten  Case,  was  quoted  and  approved  ;  and 
Beardsley,  J.,  said  :  "  Where  insanity  is  interposed  as  a  defence  to  an 
indictment  for  an  alleged  cnme,  the  inquiry  is  always  brought  down 
to  the  single  question  of  a  capacity  to  distinguish  between  right  and 
wrong  at  the  time  the  act  was  done." 

The  rule  was  reaffirmed  in  the  case  of  Willis  v.  The  People,  32  N.  Y., 
717,  and  it  must  be  regarded  as  the  settled  law  of  this  State,  that  the 
test  of  responsibility  for  criminal  acts,  where  unsoundness  of  mind  is 
interposed  as  a  defence,  is  the  capacit}'  of  the  defendant  to  distinguish 

1  See  Wartena  v.  State,  105  Ind.  445,  5  N.  E.  20.  —  Ed. 
16 


242  PARSONS  V.   STATE.  [CHAP.  VIL 

between  right  and  wrong  at  the  time  of  and  with  respect  to  the  act 
which  is  the  subject  of  the  inquiry. 

We  are  asked  in  this  case  to  introduce  a  new  element  into  the  rule 
of  criminal  responsibility  in  cases  of  alleged  insanity,  and  to  hold  that 
the  power  of  choosing  right  from  wrong  is  as  essential  to  legal  respou- 
sibilit}'  as  the  capacity  of  distinguishing  between  them ;  and  that  the 
absence  of  the  former  is  consistent  with  the  presence  of  the  latter. 

The  argument  proceeds  upon  the  theory  that  there  is  a  form  of 
insanity  in  which  the  faculties  are  so  disordered  and  deranged  that  a 
man,  though  he  perceives  the  moral  quality  of  his  acts,  is  unable  to 
control  them,  and  is  urged  by  some  mysterious  pressure  to  the  com- 
mission of  acts,  the  consequences  of  which  he  anticipates  but  cannot 
avoid. 

Whatever  medical  or  scientific  authority  there  may  be  for  this  view, 
it  has  not  been  accepted  by  courts  of  law. 

The  vagueness  and  uncertainty  of  the  inquiry  which  would  be  opened, 
and  the  manifest  danger  of  introducing  the  limitation  claimed  into  the 
rule  of  responsibility  in  cases  of  crime,  may  well  cause  courts  to  pause 
before  assenting  to  it. 

Indulgence  in  evil  passions  weakens  the  restraining  power  of  the 
will  and  conscience ;  and  the  rule  suggested  would  be  the  cover  for  the 
commission  of  crime  and  its  justification.  The  doctrine  that  a  criminal 
act  ma}'  be  excused  upon  the  notion  of  an  in-esistible  impulse  to  com- 
mit it,  where  the  offender  has  the  ability  to  discover  his  legal  and  moral 
duty  in  respect  to  it,  has  no  place  in  the  law.  Rolfe,  B.,  in  Rogers  v. 
Allunt,  where,  on  the  trial  of  an  indictment  for  poisoning,  the  defend- 
ant was  alleged  to  have  acted  under  some  moral  influence  which  he 
could  not  resist,  said  :  "  Ever}'  crime  was  committed  under  an  influence 
of  such  a  description  ;  and  the  object  of  the  law  was  to  compel  people 
to  control  these  influences." 

Judgment  affirmed. 


PARSONS   V.   STATE. 
Supreme  Court  of  Alabama.     1886. 

[Reported  81  Ala.  577.] 

SoMERVTLLE,  J.^  In  thls  case  the  defendants  have  been  convicted  of 
the  murder  of  Bennett  Parsons,  b}^  shooting  him  with  a  gun,  one  of  the 
defendants  being  the  wife  and  the  other  the  daughter  of  the  deceased. 
The  defence  set  up  in  the  trial  was  the  plea  of  insanit}',  the  evidence 
tending  to  show  that  the  daughter  was  an  idiot,  and  the  mother  and 
wife  a  lunatic,  subject  to  insane  delusions,  and  that  the  killing  on  her 
part  was  the  offspring  and  product  of  those  delusions. 

1  Part  only  of  the  opinion  is  given.  The  dissenting  opinion  of  Stone,  C.  J.,  is 
omitted. 


8ECr.  1.]  P.UtSONS   V.   STATE.  243 

The  rulings  of  the  court  raise  some  <iucstion.s  of  no  less  difliculty 
than  of  interest,  for,  as  observed  by  a  (lisliiigui>hed  Auierican  judge, 
"of  all  medico-legal  questions,  those  connected  with  insanity  are  the 
most  diflicult  and  perplexing."  (Per  Dillon,  C.  .1.,  in  State  r.  Felter, 
25  Iowa,  G7.)  It  has  become  of  late  a  uuitter  of  comment  among  intel- 
ligtnt  men,  including  the  most  advanced  thinkers  in  tlie  medical  and 
K'gal  profi'ssions,  that  the  deliverances  of  tiie  law  courts  (^n  this  branch 
of  our  jurisprudence  have  not  heretofore  been  at  all  satisfactory,  either 
in  the  soundness  of  their  theories,  or  in  their  practical  application. 
The  earliest  Knglish  decisions,  striving  to  establish  rules  and  tests  on 
the  subject,  including  alike  the  legal  rules  of  cruninal  and  civil  respon- 
sibilit_v,  and  the  supposed  tests  of  the  existence  of  tlie  disease  of  insanity 
itself,  arc  now  admitted  to  have  been  deploraltly  erroneous,  and,  to  say 
nothing  of  their  vacillating  character,  have  long  since  been  abandoned. 
The  views  of  the  ablest  of  the  old  text  writers  and  sages  of  the  law 
were  equally  confused  and  uncertain  in  the  treatment  of  these  subjects, 
and  they  are  now  entirely  exploded.  Time  was  in  the  history  of  our 
laws  that  the  veriest  lunatic  was  debarred  from  pleading  his  providen- 
tial atlliction  as  a  defence  to  his  contracts.  It  was  said,  in  justification 
of  so  absurd  a  rule,  that  no  one  could  be  permitted  to  stultify  himself 
by  pleading  his  own  disability.  .So  great  a  jurist  as  Lord  Coke,  in  his 
attempted  classification  of  madmen,  laid  down  the  legal  rule  of  criminal 
responsibility  to  be  that  one  should  "  wholly  have  lost  his  memory  and 
understanding;"  as  to  which  Mr.  Erskine,  when  defending  Iladfield 
for  shooting  the  king,  in  the  year  1800,  justly  obserA'ed :  "No  such 
madman  ever  existed  in  the  world."  After  tliis  great  and  historical 
case,  the  existence  of  delusion  promised  for  a  while  to  become  the 
sole  test  of  insanity,  and  acting  under  the  duress  of  such  delusion  was 
recognized  in  effect  as  the  legal  rule  of  responsil)ility.  Lord  Kenyon, 
after  ordering  a  verdict  of  acquittal  in  that  case,  declared  with  empha- 
sis that  there  was  "  no  doubt  on  earth  "  the  law  was  correctly  stated  in 
the  argument  of  counsel,  liut,  as  it  was  soon  discovered  that  insanity 
often  existed  without  delusions,  as  well  as  delusions  without  insanity, 
this  view  was  also  abandoned.  Lord  Hale  had  before  declared  that  the 
rule  of  responsibility  was  measured  by  the  mental  capacity  {wssessed 
by  a  child  fourteen  years  of  age  ;  and  Mr.  Justice  Tracy,  and  oilier 
judges,  had  ventured  to  decide  that,  to  \>e  non-punishable  for  alleged 
acts  of  crime,  "a  man  must  be  totally  deprived  of  his  understanding 
and  memory,  so  as  not  to  know  what  he  was  doing,  no  more  than  an 
infant,  a  brute,  or  a  wild  beast."  (Arnold's  Case,  16  How.  St.  Tr 
764.)  All  these  rules  have  necessarily  been  discarded  in  modern  time-* 
in  the  light  of  the  new  scientific  knowledge  acquired  l)y  a  more  tiior- 
ough  study  of  the  disease  of  insanity.  In  IJellingham's  Case,  ilecided 
in  1812  by  Ix)rd  Mansfield  at  the  Old  Bailey  (Coll.  on  Lun.  630),  the 
test  was  held  to  consist  in  a  knowledge  that  murder,  the  crime  there 
committed,  was  "against  the  laws  of  (iod  and  nature,"  thus  meaning 
ftD   ability  to  distinguish  between  right  and   wrong   in    the   abstract 


244  PARSONS   V.   STATE.  [CHAP.  VII. 

This  rule  was  not  adhered  to,  but  seems  to  have  been  modified  so  as  to 
make  the  test  rather  a  knowledge  of  right  and  wrong  as  applied  to  the 
particular  act.  (Lawson  on  Insanity,  231,  §  7  e<  seg).  The  great  lead- 
ing case  on  the  subject  in  England  is  McNaghten's  Case,  decided  in 
1843  before  the  English  House  of  Lords,  10  CI.  &  F.  200  ;  s.  c,  2  Law- 
son's  Cr.  Def.  150.  It  was  decided  by  the  judges  in  that  case  that,  in 
order  to  entitle  the  accused  to  acquittal,  it  must  be  clearly  proved  that, 
at  the  time  of  committing  the  offence,  he  was  laboring  under  such  a 
defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or,  if  he  did,  not  to  know  that  what  he 
was  doing  was  wrong.  This  rule  is  commonly  supposed  to  have  here- 
tofore been  adopted  by  this  court,  and  has  been  followed  by  the  general 
current  of  American  adjudications.  Boswell  v.  The  State,  63  Ala.  307  ; 
s.  c.  35  Amer.  Rep.  20  ;  s,  c  2  Lawson's  Cr.  Def.  352  ;  McAllister  v. 
State,  17  Ala.  434  ;  Lawson  on  Insanity,  219-221,  231. 

In  view  of  these  conflicting  decisions,  and  of  the  new  light  thrown 
on  the  disease  of  insanity  by  the  discoveries  of  modern  psychological 
medicine,  the  courts  of  the  country  may  well  hesitate  before  blindly 
following  in  the  unsteady  footsteps  found  upon  the  old  sandstones  of 
our  common  law  jurisprudence  a  century  ago.  The  trial  court,  with 
prudent  propriety,  followed  the  previous  decisions  of  this  court,  the  cor- 
rectness of  which,  as  to  this  subject,  we  are  now  requested  to  review. 

We  do  not  hesitate  to  say  that  we  re-open  the  discussion  of  this 
subject  with  no  httle  reluctance,  having  long  hesitated  to  disturb  our 
past  decisions  on  this  branch  of  the  law.  Nothing  could  induce  us  to 
do  so  except  an  imperious  sense  of  duty,  which  has  been  excited  by 
a  protracted  investigation  and  study,  impressing  our  minds  with  the 
conviction  that  the  law  of  insanity  as  declared  by  the  courts  on  many 
points,  and  especially  the  rule  of  criminal  accountability,  and  the  as- 
sumed tests  of  disease  to  that  extent  which  confers  legal  irresponsi- 
bility, have  not  kept  pace  with  the  progress  of  thought  and  discovery 
in  the  present  advanced  stages  of  medical  science.  Though  science 
has  led  the  way,  the  courts  of  England  have  declined  to  follow,  as 
shown  by  their  adherence  to  the  rulings  in  McNaghten's  Case,  em- 
phasized by  the  strange  declaration  made  by  the  Lord  Chancellor  of 
England,  in  the  House  of  Lords,  on  so  late  a  da}-  as  March  11,  1862, 
tliat  ''  the  introduction  of  medical  opinions  and  medical  theories  into 
this  subject  has  proceeded  upon  the  vicious  principle  of  considering 
iyisanity  as  a  disease  f  " 

It  is  not  surprising  that  this  state  of  affairs  has  elicited  from  a 
learned  law  writer,  who  treats  of  this  subject,  the  humiliating  declara- 
tion that,  under  the  influence  of  these  ancient  theories,  '•  the  memorials 
of  our  jurisprudence  are  written  all  over  with  cases  in  which  those 
who  are  now  understood  to  have  been  insane  have  been  executed  as 
criminals."  1  Bish.  Cr.  Law  (7th  ed.)  §  390.  There  is  good  reason, 
both  for  this  fact  and  for  the  existence  of  unsatisfactory  rules  on  this 
subject.     In  what  we  say  we  do  not  intend  to  give  countenance  to  ao 


SECT.  I.]  PARSONS   V.    ST.VTi:.  245 

quittals  of  criminals,  frequent  examples  of  wliicli  have  been  witiiossod 
in  modern  times,  based  on  the  doctrine  of  moral  or  emotional  insanity, 
unconnected  with  mental  disease,  which  is  not  \ ct  sutllciently  supported 
by  ps^x'hology,  or  recognized  by  law  as  an  excuse  for  crime.  Boswell's 
case,  supra  ;  1  Whar.  Cr.  Law  (Dth  ed.),  §  \'-i. 

In  ancient  times  lunatics  were  not  regarded  as  "  unfortunate  suffer- 
ers from  disease,  but  rather  as  sulijects  of  demoniacal  possession,  or  as 
self-made  victims  of  evil  passions."  They  were  not  cared  for  humanely 
in  asylums  and  hospitals,  but  were  incarcerated  in  jails,  punished  with 
chains  and  stripes,  and  often  sentenced  to  death  by  burning  or  tiic 
gibbet.  When  put  on  tlieir  trial,  the  issue  before  the  court  then  was 
not  as  now.  If  acquitted,  they  could  only  be  turned  loose  on  the  com- 
munity to  repeat  tlieir  crimes  without  molestation  or  restraint.  They 
could  net  be  committed  to  hospitals,  as  at  the  present  day,  to  be  kept 
in  custody,  cared  for  by  medical  attention,  and  often  cured.  It  was  not 
until  the  beginning  of  the  present  century  that  the  progress  of  Christian 
civilization  asserted  itself  b}'  the  exposure  of  the  then  existing  bar- 
barities, and  that  the  outcry  of  philanthropists  succeeded  in  eliciting 
an  investigation  of  the  Hritish  rarliament  looking  to  their  suppression. 
Up  to  that  period  the  medical  treatment  of  the  insane  is  known  to  have 
been  conducted  upon  a  basis  of  ignorance,  inhumanity,  and  empiricism. 
Amer.  Cyclopaedia,  vol.  ix.  (1874),  title.  Insanity.  Being  punished  for 
wickedness,  rather  than  treated  for  disease,  this  is  not  surprising.  The 
exposure  of  these  evils  not  only  led  to  the  establishment  of  that  mos 
beneficent  of  modern  civilized  charities,  the  Hospital  and  Asylum  for 
the  Insane,  but  also  furnished  hitherto  unequalled  ojiportunities  to  the 
medical  profession  of  investigating  and  treating  insanity  on  the  path- 
ological basis  of  its  being  a  disease  of  the  mind.  Under  these  new 
and  more  favorable  conditions  the  medical  jurisprudence  of  insanity 
has  assumed  an  entirely  new  phase.  The  nature  and  exciting  causes  of 
the  disease  have  been  thoroughly  studied  and  more  full}-  comprehended. 
The  result  is  that  the  "  right  and  wrong  test,"  as  it  is  sometimes  called, 
which,  it  must  be  remembered,  itself  originated  with  the  medical  pro- 
fession, in  the  mere  dawn  of  the  scientific  knowledge  of  insanity,  has 
been  condemned  by  the  great  current  of  modern  medical  authorities, 
who  believe  it  to  be  "founded  on  an  ignorant  and  imperfect  view  of 
the  disease."     Encj-c.  Brit.  vol.  xv.  (9th  ed.),  title.  Insanity. 

The  question  then  presented  seems  to  be  whether  an  old  rule  of 
legal  responsibility  shall  be  adhered  to  based  on  theories  of  physicians 
promulgated  a  hundred  j'cars  ago,  which  refuse  to  recognize  any  evi- 
dence of  insanity  except  the  single  test  of  mental  capacity  to  dis- 
tinguish right  and  wrong,  or  whether  the  courts  will  recognize  as  a 
possible  fact,  if  capable  of  proof  by  clear  and  satisfactory  testimony, 
the  doctrine,  now  alleged  by  those  of  the  medical  profession  who  have 
inade  insanity  a  special  subject  of  investigation,  that  tlie  old  test  is 
wrong,  and  that  there  is  no  single  test  by  which  the  existence  of  the 
disease,  to  that  degree  which  exempts  from  punishment,  can  in  every 


246  PAKSONS   V.    STATE.  [CHAP.  VII. 

cape  be  infallibl}'  detected.  The  inquiry  must  not  be  undnl}-  obstructed 
bv  the  doctrine  of  stare  decisis,  for  the  life  of  the  common  law  system 
and  the  hope  of  its  permanency  consist  largely  in  its  power  of  adap- 
tation to  new  scientific  discoveries,  and  the  requirements  of  an  ever 
advancing  civilization.  There  is  inherent  in  it  the  vital  principle  of 
juridical  evolution,  which  preserves  itself  b}-  a  constant  struggle  for 
approximation  to  the  highest  practical  wisdom.  It  is  not  like  the  laws 
of  the  Medes  and  Persians,  which  could  not  be  changed.  In  establish- 
ing an}'  new  rule,  we  should  strive,  however,  to  have  proper  regard  for 
two  opposite  aspects  of  the  subject,  lest,  in  the  words  of  Lord  Hale, 
"on  one  side  there  be  a  kind  of  inhumanity  towards  the  defects  of 
human  nature  ;  or,  on  the  other,  too  great  indulgence  to  great  crimes." 

It  is  everN'whcre  admitted,  and  as  to  this  there  can  be  no  doubt, 
that  an  idiot,  lunatic,  or  other  person  of  diseased  mind,  who  is  afflicted 
to  such  extent  as  not  to  know  whether  he  is  doing  right  or  wrong,  is 
not  punishable  for  any  act  which  he  may  do  while  in  that  state. 

Can  the  courts  justly  say,  however,  that  the  onh'  test  or  rule  of 
responsibility  in  criminal  cases  is  the  power  to  distinguish  right  from 
wrong,  whether  in  the  abstract,  or  as  applied  to  the  particular  case  ? 
Or  may  there  not  be  insane  persons  of  a  diseased  brain,  who,  while 
capable  of  perceiving  the  difference  between  right  and  wrong,  are,  as 
matter  of  fact,  so  far  under  the  duress  of  such  disease  as  to  destroy-  the 
poicer  to  choose  between  right  and  wrong?  Will  the  courts  assume  as 
a  fact,  not  to  be  rebutted  b}'  an}'  amount  of  evidence,  or  an}-  new  dis- 
coveries of  medical  science,  that  there  is,  and  can  be,  no  such  state  of 
the  mind  as  that  described  by  a  writer  on  psychological  medicine,  as 
one  "  in  which  the  reason  has  lost  its  empire  over  the  passions,  and  the 
actions  by  which  the}'  are  manifested,  to  such  a  degree  that  the  indi- 
vidual can  neither  repress  the  former,  nor  abstain  from  the  latter "  ? 
Dean's  Med.  Jur.  497. 

Much  confusion  can  be  avoided  in  the  discussion  of  this  subject  by 
separating  the  duty  of  the  jury  from  that  of  the  court  in  the  trial  of  a 
case  of  this  character.  The  province  of  the  jury  is  to  determine  facts, 
that  of  the  court  to  state  the  law.  The  rule  in  McNaghten's  Case  arro- 
gates to  the  court,  in  legal  effect,  the  right  to  assert,  as  matter  of  law, 
the  following  propositions  :  — 

1.  That  there  is  but  a  single  test  of  the  existence  of  that  degree  of 
insanity,  such  as  confers  irresponsibility  for  crime. 

2.  That  there  does  not  exist  any  case  of  such  insanity  in  which  that 
single  test  —  the  capacity  to  distinguish  right  from  wrong  —  does  not 
appear. 

.3.  That  all  other  evidences  of  alleged  insanity,  supposed  by  physicians 
and  experts  to  indicate  a  destruction  of  tlie  freedom  of  the  human  will 
and  the  irresistiV)le  duress  of  one's  actions,  do  not  destroy  his  mental 
capacity  to  entertain  a  criminal  intent. 

The  whole  difficulty,  as  justly  said  by  the  Supreme  Judicial  Court  of 
New  Hampshire,  is  that  "courts  have  undertaken  to  declare  that  to 


SECT.  I.]  PARSONS  V.   STA.TF,.  247 

be  law  which  is  matter  of  fact."  "If"  observes  the  same  eourt,  "  the 
tests  of  insanity  are  matters  of  law,  the  practice  of  allowing  experts 
to  testify  what  they  arc  slioiiKl  he  discontinued  ;  if  they  are  inattrrB 
of  fact,  the  judge  should  no  longer  testify  witiiout  being  sworn  as  a 
witness,  and  showing  himself  to  be  qualified  to  testify  as  an  expert." 
State  V.  Pike,  19  N.  II.  399. 

We  first  consider  what  is  the  proper  legal  rule  of  responsibility  in 
criminal  cases. 

No  one  can  deny  that  there  must  be  two  constituent  elements  of  legal 
responsibility  in  the  commission  of  every  crime,  and  no  rule  can  be  just 
and  reasonable  which  fails  to  recognize  either  of  them  :  (1)  capacity 
of  intellectual  discrimination  ;  and  (2)  freedom  of  will.  Mr.  Wharton, 
after  recognizing  this  fundamental  and  obvious  principle,  ol»ser\es  : 
"  If  there  be  eitlier  incapacity  to  dislinguisli  between  right  and  wrong 
as  to  the  particular  act,  or  delusion  as  to  the  act,  or  inability  to  refrain 
from  doing  the  act,  there  is  no  responsibility."  1  Whar.  Cr.  Law  (9th 
ed.),  §  33.  Says  Mr.  Bishop,  in  discussing  this  subject:  "There  can- 
not be,  and  there  is  not,  in  any  locality,  or  age,  a  law  punishing  men 
for  what  they  cannot  avoid."     1  Bish.  Cr.  Law  (7th  ed.),  §  3836. 

If,  therefore,  it  be  true,  as  matter  of  fact,  that  the  disease  of  insanity 
can,  in  its  action  on  the  human  brain  through  a  shattered  nervous 
organization,  or  in  any  other  mode,  so  affect  the  mind  as  to  subvert 
the  freedom  of  tiie  will,  and  thereby  destroy  the  power  of  the  victim  to 
choose  between  the  right  and  wrong,  although  he  perceive  it,  —  by  which 
we  mean  the  power  of  volition  to  adhere  in  action  to  the  right  and  abstain 
from  tlie  wrong,  —  is  such  a  one  criminally  responsible  for  an  act  done 
under  the  intluence  of  such  controlling  disease?  We  clearly  think  not ; 
and  such  we  believe  to  be  tlie  just,  reasonable,  and  humane  rule  towards 
which  all  the  modern  authorities  in  this  country,  legislation  in  England, 
and  the  laws  of  other  civilized  countries  of  the  world,  are  graduall}',  but 
surely  tending,  as  we  shall  further  on  attempt  more  fully  to  show. 

We  next  consider  the  question  as  to  the  2»'ol)aMe  existence  of  such  a 
disease,  and  the  test  of  its  presence  in  a  given  case. 

It  will  tiot  do  for  tlie  courts  to  dogmatically  deny  the  possible  exist- 
ence of  sucli  a  disease,  or  its  pathological  and  psychical  effects,  because 
this  is  a  matter  of  evidence,  not  of  law,  or  judicial  cognizance.  Its 
existence,  and  effect  on  the  mind  and  conduct  of  the  patient,  is  a  ques- 
tion of  fact  to  be  proved,  just  as  much  as  the  possible  existence  of 
cholera  or  yellow  fever  formerh'  was  before  these  diseases  became  the 
subjects  of  common  knowledge,  or  the  effects  of  delirium  from  fever,  or 
intoxication  from  opium  and  alcoholic  stimulants  would  be.  The  courts 
couUl,  with  just  as  much  propriety  years  ago,  have  denied  the  existence 
of  the  Copernican  system  of  the  universe,  the  efficacy  of  steam  and 
electricity  as  a  motive  power,  or  the  possibility  of  communication  in  a 
few  moments  between  the  continents  of  Europe  and  America  by  the 
magnetic  telegraph,  or  that  of  the  instantaneous  transmission  of  tlve 
human  voice  from  one  distant  city  to  another  by  tlie  use  of  the  tei 


248  PARSONS   V.   STATE.  [cHAP.  VII. 

phone.  These  are  scientific  facts,  first  discovered  by  experts  before 
becoming  matters  of  common  knowledge.  So,  in  like  manner,  must  be 
every  other  unknown  scientific  fact,  in  whatever  profession  or  depart- 
ment of  knowledge.  The  existence  of  such  a  cerebral  disease  as  that 
which  we  have  described  is  earnestly  alleged  by  the  superintendents  of 
insane  hospitals  and  other  experts  who  constantly  have  experimental 
dealings  with  the  insane,  and  they  are  permitted  every  day  to  so  testify 
before  juries.  The  truth  of  their  testimony — or  what  is  the  same  thing, 
the  existence  or  non-existence  of  such  a  disease  of  the  mind  —  in  each 
particular  case,  is  necessarily  a  matter  for  the  determination  of  the  jury 
from  the  evidence. 

So  it  is  equally  obvious  that  the  courts  cannot,  upon  any  sound  prin^ 
ciple,  undertake  to  say  what  are  the  invariable  or  infallible  tests  of  such 
disease.  The  attempt  has  been  repeatedly  made,  and  has  proved  a 
confessed  failure  in  practice.  "  Such  a  test,"  says  Mr.  Bishop,  "has 
never  been  found,  not  because  those  who  have  searched  for  it  have  not 
been  able  and  diligent,  but  because  it  does  not  exist."  1  Bish.  Cr.  Law 
(7th  ed.),  §  381.  In  this  conclusion,  Dr.  Ray,  in  his  learned  work  on 
the  Medical  Jurisprudence  of  Insanity,  fully  concurs.  Ray's  Med.  Jur. 
Ins.  p.  39.  The  symptoms  and  causes  of  insanity  are  so  variable,  and 
its  pathology  so  complex,  that  no  two  cases  may  be  just  alike.  "The 
fact  of  its  existence,"  says  Dr.  Ray,  "  is  never  established  by  any  single 
diagnostic  symptom,  but  by  the  whole  body  of  symptoms,  no  particular 
one  of  which  is  present  in  every  case."  Ray's  Med.  Jur.  of  Ins.  §  24. 
Its  exciting  causes  being  moral,  psychical,  and  physical  are  the  especial 
subjects  of  specialists'  study.  What  effect  may  be  exerted  on  the  given 
patient  by  age,  sex,  occupation,  the  seasons,  personal  surroundings, 
hereditary  transmission,  and  other  causes  is  the  subject  of  evidence 
based  on  investigation,  diagnosis,  observation,  and  experiment.  Pecu- 
liar opportunities,  never  before  enjoyed  in  the  history  of  our  race,  are 
offered  in  the  present  age  for  the  ascertainment  of  these  facts,  by  the 
establishment  of  asylums  for  the  custody  and  treatment  of  the  insane, 
which  Christian  benevolence  and  statesmanship  have  substituted  for 
jails  and  gibbets.  The  testimony  of  these  experts  —  differ  as  they  may 
in  many  doubtful  cases  —  would  seem  to  be  the  best  which  can  be 
obtained,  however  unsatisfactory  it  may  be  in  some  respects. 

In  the  present  state  of  our  law,  under  the  rule  in  McNaghten's 
Case,  we  are  confronted  with  this  practical  difficulty,  which  itself  demon- 
strates the  defects  of  the  rule.  The  courts  in  effect  charge  the  juries, 
as  matter  of  law,  that  no  such  mental  disease  exists  as  that  often 
testified  to  by  medical  writers,  superintendents  of  insane  hospitals,  and 
other  experts,  —  that  there  can  be  as  matter  of  scientific  fact  no  cere- 
bral defect,  congenital  or  acquired,  which  destroj's  the  patient's  power 
of  self-control,  his  libert}"  of  will  and  action,  provided  only  he  retains 
a  mental  consciousness  of  right  and  wrong.  The  experts  are  immedi- 
ately put  under  oath,  and  tell  the  juries  just  the  contrary,  as  matter  of 
evidence  ;  asserting  that  no  one  of  ordinary  intelligence  can  spend  an 


SECT.  I.]  PARSONS   V.   STATK  249 

hour  in  the  wards  of  an  insane  asylum  without  discovering  such  cases, 
and  in  fact  that  "  the  whole  management  of  such  asyhuns  presupposes 
a  knowledge  of  right  and  wrong  on  the  part  of  tlieir  inmates."  (Juy  & 
F.  on  Forensic  Med.  220.  The  result  in  practice,  we  repeat,  is  that 
the  courts  charge  one  way,  and  the  jury,  following  an  alleged  higher 
law  of  humanity,  find  another  in  harmony  with  the  evidence. 

In  Buckniil  on  Criminal  Lunacy,  p.  59,  it  is  asserted  as  "  the  result 
of  observation  and  experience,  that  in  all  lunatics  and  in  the  most 
degraded  idiots,  whenever  manifestations  of  any  mental  action  can  Imj 
educed,  the  feeling  of  right  and  wrong  may  be  proved  to  exist." 

*'  With  regard  to  this  test,"  says  Dr.  KusscU  Reynolds,  in  his  work 
on  "The  Scientific  Value  of  the  Legal  Tests  of  Lisanity,"  p.  34 
(London,  1872),  "I  may  say,  and  most  emphatically,  that  it  is  utterly 
untrustworth}',  because  untrue  to  the  obvious  facts  of  Nature." 

In  the  learned  treatise  of  Drs.  Buckniil  and  Tuke  on  "  Psychological 
Medicine,"  p.  269  (4th  ed.  London,  1879),  the  legal  tests  of  respon- 
sibility are  discussed,  and  the  adherence  of  the  courts  to  the  right  and 
wrong  tost  is  deplored  as  unfortunate,  the  true  principle  being  stated  to 
be  "  whether,  in  consequence  of  congenital  defect  or  acquired  disease, 
the  potcer  of  self-control  is  absent  altogether,  or  is  so  far  watiting  as  to 
render  the  individual  irresponsible."  It  is  observed  by  the  authors : 
"  As  has  again  and  again  been  shown,  the  unconsciousness  of  right 
and  wrong  is  one  thing,  and  the  powerlessness  through  cerebral  defect 
or  disease  to  do  right  is  another.  To  confound  them  in  an  asylum 
would  have  the  effect  of  transferring  a  considerable  number  of  the 
inmates  thence  to  the  treadmill  or  the  gallows." 

Dr.  Peter  Bryce,  Superintendent  of  the  Alabama  Insane  Hospital  for 
more  than  a  quarter-century  past,  alluding  to  the  moral  and  disciplinary 
treatment  to  which  the  insane  inmates  are  subjected,  observes :  ''  They 
are  dealt  with  in  this  institution,  as  far  as  it  is  practicable  to  do  so,  as 
rational  beings ;  and  it  seldom  happens  that  we  meet  with  an  insane 
person  who  cannot  be  made  to  discern,  to  some  feeble  extent,  his  duties 
to  himself  and  others,  and  his  true  relations  to  society."  Sixteenth 
Annual  Rep.  Ala.  Insane  Hosp.  (1876),  p.  22;  Biennial  Rep.  (1886), 
pp.  12-18. 

Other  distinguished  writers  on  the  medical  jurisprudence  of  insanity 
have  expressed  like  views,  with  comparative  unanimity.  And  nowhere 
do  we  find  the  rule  more  emphatically  condemned  than  by  those  who 
have  the  practical  care  and  treatment  of  the  insane  in  the  various 
lunatic  asylums  of  every  civilized  country'.  A  notable  instance  is  found 
in  the  following  resolution  unanimously  passed  at  the  annual  meeting 
of  the  British  Association  of  medical  oillcers  of  Asylums  and  IlospiUils 
for  the  insane,  held  in  Ix>ndon,  July  14,  1864,  where  there  were  present 
fifty-four  medical  otficers  :  — 

"  Resolved,  That  so  much  of  the  legal  test  of  the  mental  condition  of 
an  alleged  criminal  lunatic  as  renders  him  a  responsible  agent,  because 
he  knows  the  difference  between  right  and  wrong,  is  inconsistent  with 


250  PARSONS   V.    STATE.  [CHAP.  VII, 

the  fact,  well  known  to  ever}'  member  of  this  meeting,  thnt  the  power 
of  distinguishing  between  right  and  wrong  exists  very  frequently  in 
those  who  are  undoubtedly  insane,  and  is  often  associated  with  dan- 
gerous and  uncontrollable  delusions."  Judicial  Aspects  of  Insanity 
(Ordronaux,  1877),  423-424. 

These  testimonials  as  to  a  scientific  fact  are  recognized  by  intelligent 
men  in  the  affairs  of  every-day  business,  and  are  constantly  acted  on 
by  juries.  They  cannot  be  silently  ignored  by  judges.  Whether  estab- 
lished or  not,  there  is  certainly  respectable  evidence  tending  to  establish 
it.  and  this  is  all  the  courts  can  require. 

Nor  are  the  modern  law  writers  silent  in  their  disapproval  of  the 
alleged  test  under  discussion.  It  meets  with  the  criticism  or  condem- 
nation of  the  most  respectable  and  advanced  in  thought  among  them, 
the  tendency  being  to  incorporate  in  the  legal  rule  of  responsibility 
"not  only  the  knoidedge  of  good  and  evil,  but  the  poioer  to  choose  the 
one,  and  refrain  from  the  other."  Browne's  Med.  Jur.  of  Insanity, 
§§  IZet  seq.,  §  18 ;  Ray's  Med.  Jur.  §§  16-19  ;  Whart.  &  Stilles'  Med. 
Jur.  §  59;  1  Whart.  Cr.  Law  (9th  ed.),  §§  33,  43,  45;  1  Bish.  Cr. 
Law  (7th  ed.),  §  386  et  seq. ;  Judicial  Aspects  of  Insanity  (Ordronaux), 
419  ;  1  Green.  Ev.  §  372  ;  1  Steph.  Hist.  Cr.  Law,  §  168  ;  Amer.  Law 
Rev.  vol.  iv.  (1869-70),  236  et  seq. 

The  following  practicable  suggestion  is  made  in  the  able  treatise 
of  Balfour  Browne  above  alluded  to;  "-In  a  case  of  alleged  insanity, 
then,"  he  says,  "  if  the  individual  suffering  from  enfeeblcment  of  intel- 
lect, delusion,  or  any  other  form  of  mental  aberration,  was  looked  upon 
as,  to  the  extent  of  this  delusion,  under  the  influence  of  duress  (the 
dire  duress  of  disease),  and  in  so  far  incajmcitated  to  choose  the  good 
and  eschew  the  evil,  in  so  far,  it  seems  to  us,"  he  continues,  "  would 
the  requirements  of  the  law  be  fulfilled  ;  and  in  that  way  it  would  afford 
an  opening,  by  the  evidence  of  experts,  for  the  proof  of  the  amount  of 
self-duress  in  each  individual  case  and  thus  alone  can  the  criterioyi  of 
law  a?id  the  criterion  of  the  iiiductive  science  of  medical  psychology 
be  made  to  coincide:'     Med.  Jur.  of  Ins.  (Browne),  §  18. 

This,  in  our  judgment,  is  the  practical  solution  of  the  difficulty  before 
us,  as  it  preserves  to  the  courts  and  the  juries,  respectively,  a  harmo- 
nious field  for  the  full  as-sertion  of  their  time-honored  functions. 

So  great,  it  may  be  added,  are  the  embarrassments  growing  out  of 
the  old  rule,  as  expounded  by  the  judges  in  the  House  of  English  Lords, 
that,  in  March,  1874,  a  bill  was  brought  before  the  House  of  Commons, 
supposed  to  have  been  drafted  by  the  learned  counsel  for  the  Queen, 
Mr.  Fitzjames  Stephen,  which  introduced  into  the  old  rule  the  new 
element  of  an  absence  of  the  power  of  self-control,  produced  by  diseases 
affecting  the  mind  ;  and  this  proposed  alteration  of  the  law  was  cordially 
recommended  by  the  late  Chief  Justice  Cockburn,  his  only  objection 
being  that  the  principle  was  proposed  to  be  limited  to  the  case  of  homi- 
cide. 1  Whart.  Cr.  Law  (9th  ed.),  §  45,  p.  ^Q,  note  1 ;  Browne's  Med. 
Jur.  of  Insan.  §  10,  note  1. 


SECT.  I.]  PARSONS  V.    STATR.  251 

There  are  many  well  considorcd  cases  wliich  support  these  views.' 

The  law  of  Scotland  is  in  accord  with  the  Knglish  law  on  this  subject, 
as  might  well  be  expected.  The  Criminal  Code  of  Germany,  liowev«M-, 
contains  the  following  provision,  which  is  said  to  have  i)een  the  formn- 
lated  result  of  a  very  able  discussion  both  by  the  physicians  and  lawyers 
of  that  countrv :  "There  is  no  criminal  act  when  the  actor  at  the 
time  of  the  offence  is  in  a  state  of  unconsciousness,  or  morbid  disturl)- 
ance  of  the  mind,  t/iroufjh  which  the  free  determination  of  his  trill  is 
excluded."  Kncyc.  Hrit.  (0th  ed.),  vol.  ix.  p.  112  ;  citing  Crim.  Code  of 
Germany  (i?  oKR.  G.  B.). 

The  Code  of  France  provides  :  "  There  can  be  no  crime  or  offence  if 
the  accused  was  in  a  state  of  ynadness  at  the  time  of  the  act."  For 
some  time  the  French  tribunals  were  inclined  to  interpret  this  law  in 
such  a  manner  as  to  follow  in  substance  the  law  of  England.  But  tliat 
construction  has  been  abandoned,  and  the  modern  view  of  the  medical 
profession  is  now  adopted  in  that  countr}-. 

It  is  no  satisfactory  objection  to  say  that  tl\e  rule  above  announced 
b}'  us  is  of  difficult  a[)plication.  The  rule  in  IMcNaghten's  Case,  siqvn, 
is  equally  obnoxious  to  a  like  criticism.  The  dilliculty  does  not  lie  in 
the  rule,  but  is  inherent  in  the  subject  of  insanit}'  itself.  The  practical 
trouble  is  for  the  courts  to  determine  in  what  particular  cases  the  part\' 
on  trial  is  to  be  transferred  from  the  category  of  sane  to  that  of  insane 
criminals,  — where,  in  other  words,  the  border  line  of  punishability  is 
adjudged  to  be  passed.  But,  as  has  been  said  in  reference  to  an  every- 
da}'  fact  of  Nature,  no  one  can  say  where  twilight  ends  or  begins,  liut 
there  is  ample  distinction  nevertheless  between  day  and  night.  We 
think  we  can  safely  rely  in  this  matter  upon  the  intelligence  of  our 
juries,  guided  by  the  testimony  of  men  who  have  practicalh'  made  a 
study  of  the  disease  of  insanity,  and  enlightened  by  a  conscientious 
desire,  on  the  one  hand,  to  enforce  the  criminal  laws  of  the  land,  and 
on  the  other,  not  to  deal  harshly  with  an}'  unfortunate  victim  of  a 
diseased  mind,  acting  without  the  light  of  reason,  or  the  power  of 
volition. 

It  is  almost  needless  to  add  that  where  one  does  not  act  under  the 
duress  of  a  diseased  mind,  or  insane  delusion,  but  from  motives  of 
anger,  revenge,  or  other  passion,  he  cannot  claim  to  be  shielded  from 
punishment  for  crime  on  the  ground  of  insanity.  Insanity  proper  is 
more  or  less  a  mental  derangement,  coexisting  often,  it  is  true,  with  a 
disturbance  of  the  emotions,  affections,  and  other  moral  powers.  A 
mere  moral,  or  emotional  insanity,  so-called,  unconnected  with  disease 
of  the  mind,  or  irresistil)le  impulse  resulting  from  mere  moral  obliquity, 
or  wicked  propensities  and  habits,  is  not  recognized  as  a  defence  to 
crime  in  our  courts.  1  Whar.  Cr.  Law  (9th  ed.),  §  4fi  :  Boswell  '•.  State, 
63  Ala.  307,  3-5  Amer.  Rep.  20  ;  Ford  v.  State,  71  Ala.  ^^'^. 

The  charges  refused  by  the  court  raise  the  question  as  to  how  far 

*  The  consideration  of  certnin  authorities  on  the  stifiject  is  omitted. 


252  PARSONS   V.   STATE  [CHAP.  VII. 

one  acting  under  the  influence  of  an  insane  delusion  is  to  be  exempted 
from  criminal  accountability.  The  evidence  tended  to  show  that  one  of 
the  defendants,  Mrs.  Nancy  J.  Parsons,  acted  under  the  influence  of 
an  insane  delusion  that  the  deceased,  whom  she  assisted  in  killing, 
possessed  supernatural  power  to  afflict  her  with  disease,  and  to  take 
her  life  by  some  "supernatural  trick;"  that  by  means  of  such  power 
the  deceased  had  caused  defendant  to  be  in  bad  health  for  a  long 
time,  and  that  she  acted  under  the  belief  that  she  was  in  great  danger 
of  the  loss  of  her  life  from  the  conduct  of  deceased  operating  by  means 
of  such  supernatural  power. 

The  rule  in  McNaghten's  Case,  as  decided  by  the  English  judges,  and 
supposed  to  have  been  adopted  by  the  court,  is  that  the  defence  of 
insane  delusion  can  be  allowed  to  prevail  in  a  criminal  case  only  when 
the  imaginary  state  of  facts  would,  if  real,  justify  or  excuse  the  act ; 
or,  in  the  language  of  the  English  judges  themselves,  the  defendant 
"  must  be  considered  in  the  same  situation  as  to  responsibility,  as  if 
the  facts  with  respect  to  which  the  delusion  exists  were  real."  Boswell's 
case,  63  Ala.  307.  It  is  apparent,  from  what  we  have  said,  that  this 
rule  cannot  be  correct  as  applied  to  all  cases  of  this  nature,  even  limiting 
it,  as  done  by  the  English  judges,  to  cases  where  one  "labors  under 
partial  delusion,  and  is  not  in  other  respects  insane."  McNaghten's 
Case,  10  CI.  &  F.  200 ;  s.  c.  2  Lawson's  Cr.  Def.  150.  It  holds  a  par- 
tially insane  person  as  responsible  as  if  he  were  entirely  sane,  and  it 
ignores  the  possibility  of  crime  being  committed  under  the  duress  of  an 
insane  delusion,  operating  upon  a  human  mind,  the  integrity  of  which 
is  destroyed  or  impaired  by  disease,  except,  perhaps,  in  cases  where 
the  imaginary  state  of  facts,  if  real,  would  excuse  or  justify  the  act 
done  under  their  influence.  Fields'  Med.  Leg.  Guide,  101-104  ;  Guy 
&  F.  on  Forensic  Med.  220.  If  the  rule  declared  by  the  English  judges 
be  correct,  it  necessarily  follows  that  the  only  possible  instance  of 
excusable  homicide  in  cases  of  delusional  insanity  would  be  where  the 
delusion,  if  real,  would  have  been  such  as  to  create,  in  the  mind  of  a 
reasonable  man,  a  just  apprehension  of  imminent  peril  to  life  or  limb. 
The  personal  fear,  or  timid  cowardice  of  the  insane  man,  although 
created  by  disease  acting  through  a  prostrated  nervous  organization, 
would  not  excuse  undue  precipitation  of  action  on  his  part.  Nothing 
would  justify  assailing  his  supposed  adversary  except  an  overt  act,  or 
demonstration  on  the  part  of  the  latter,  such  as,  if  the  imaginary  facts 
were  real,  would  under  like  circumstances  have  justified  a  man  perfectly 
sane  in  shooting  or  killing.  If  he  dare  fail  to  reason  on  the  supposed 
facts  embodied  in  the  delusion,  as  perfectly  as  a  sane  man  could  do  on  a 
like  state  of  realities,  he  receives  no  mercy  at  the  hands  of  the  law.  It 
exacts  of  him  the  last  pound  of  flesh.  It  would  follow  also,  under  this 
rule,  that  the  partially  insane  man,  afflicted  with  delusions,  would  no 
more  be  excusable  than  a  sane  man  would  be,  if,  perchance,  It  was  by 
his  fault  the  difficulty  was  provoked,  whether  by  word  or  deed  ;  or,  if, 
in  fine,  he  may  have  been  so  negligent  as  not  to  have  declined  combat, 


SECT.  I.]  PARSONS   V.    STATE.  253 

when  he  could  do  so  safel}-  without  increasing  his  peril  of  life  or  limb. 
If  this  has  been  the  law  heretofore,  it  is  time  it  should  be  so  no  longer. 
It  is  not  only  opposed  to  tlie  known  facts  of  modern  medical  science, 
but  it  is  a  hard  and  unjust  rule  to  be  ai)plied  to  tlie  unfortunate  and 
providential  victims  of  disease.  It  seems  to  be  little  less  than  inhu- 
mane, and  its  strict  enforcement  would  probably  transfer  a  large  per- 
centage of  the  inmates  of  our  Insane  Hospital  from  tiiat  institution  to 
hard  labor  in  the  mines  or  the  penitentiary.  Its  fallacy  consists  in  the 
assuniption  that  no  other  phase  of  delusion  proceeding  from  a  diseased 
brain  can  so  destroy  the  volition  of  an  insane  person  as  to  render  him 
powerless  to  do  what  he  knows  to  be  right,  or  to  avoid  doing  wliat 
he  may  know  to  be  wrong.  This  inquiry,  as  we  have  said,  and  here 
repeat,  is  a  question  of  fact  for  the  determination  of  the  jury  in  each 
particular  case.  It  is  not  a  matter  of  law  to  be  decided  by  the  courts. 
We  think  it  suflicient  if  the  insane  delusion  —  by  which  we  mean  the 
delusion  proceeding  from  a  diseased  mind — sincerely  exists  at  the  time 
of  committing  the  alleged  crime,  and  the  defendant  believing  it  to  be 
real,  is  so  influenced  by  it  as  either  to  render  him  incapable  of  perceiv- 
ing the  true  nature  and  quality  of  the  act  done,  by  reason  of  the  depia- 
vation  of  the  reasoning  faculty,  or  so  subverts  his  will  as  to  destroy  his 
free  agency  by  rendering  him  powerless  to  resist  by  reason  of  the  duress 
of  the  disease.  In  such  a  case,  in  other  words,  there  must  exist  either 
one  of  two  conditions  :  (1)  such  mental  defect  as  to  render  the  defend- 
ant unable  to  distinguish  between  right  and  wrong  in  relation  to  the 
particular  act ;  (2)  the  overmastering  of  defendant's  will  in  consequence 
of  the  insane  delusion  under  the  influence  of  which  he  acts,  produced 
by  disease  of  the  mind  or  brain.  Rex  v.  Hadfield,  37  How.  8t.  Tr. 
1282  ;  s.  c,  2  Lawson's  Cr.  Def.  201  ;  Roberts  v.  State,  3  Ga.  310  ;  Com. 
V.  Rogers,  7  Met.  500;  State  v.  Windsor,  5  Harr.  512;  Buswell  ou 
Insan.  §§  434,  440  ;  Amer.  Law  Review,  vol.  iv.  (1869-70)  pp.  236-252. 
In  conclusion  of  this  branch  of  the  subject,  that  we  may  not  be  mis- 
understood, we  think  it  follows  very  clearly  from  what  we  have  said 
that  the  inquiries  to  be  submitted  to  the  jury,  then,  in  every  criminal 
trial  where  the  defence  of  insanity  is  interposed,  are  these  :  — 

1.  Was  the  defendant  at  the  time  of  the  commission  of  the  alleged 
crime,  as  matter  of  fact,  afflicted  with  a  disease  of  the  niirid,  so  as  to  be 
either  idiotic,  or  otherwise  insane? 

2.  If  such  be  the  case,  did  he  know  right  from  wrong  as  applied  to 
the  particular  act  in  question?  If  he  did  not  have  such  knowledge,  he 
is  not  legall}-  responsible. 

3.  If  he  did  have  such  knowledge,  he  may  nevertheless  not  be  legally 
responsible  if  the  two  following  conditions  concur: 

(1)  If,  by  reason  of  tiie  duress  of  such  mental  disease,  he  had  so  far 
lost  the  power  to  choose  between  the  right  and  wrong,  and  to  avoid  doing 
the  act  in  question,  as  that  his  free  agency  was  at  the  time  destroyed. 

(2)  And  if,  at  the  same  time,  the  alleged  crime  was  so  connected 
with  such  mental  disease,  in  the  relation  of  cause  and  effect,  as  to  have 
been  the  product  of  it  solely. 


254:  PARSONS   V.    STATK  [CHAP.  VII. 

The  rule  announced  in  Boswell's  Case,  63  Ala.  308,  stqyra,  as  stated 
in  the  fourth  head  note,  is  in  conflict  with  the  foregoing  conclusions, 
and  to  that  extent  is  declared  incorrect,  and  is  not  supported  by  the 
opiiiion  in  that  case,  otherwise  than  by  dictum. 

We  adhere,  however,  to  the  rule  declared  by  this  court  in  Boswell's 
case,  supra,  and  followed  in  Ford's  Case,  71  Ala.  385,  holding  that 
when  insanity  is  set  up  as  a  defence  in  a  criminal  case,  it  must  be 
established  to  the  satisfaction  of  the  jury  b}'  a  preponderance  of  the 
evidence ;  and  a  reasonable  doubt  of  the  defendant's  sanit}',  raised  by 
all  the  evidence,  does  not  authorize  an  acquittal. 

The  judgment  is  reversed,  and  the  cause  remanded.  In  the  mean- 
while the  prisoners  will  be  held  in  custody  until  discharged  by  due 
process  of  law. 

Stone,  C.  J.,  dissents  in  part 

Note  on  the  Test  of  Insanity.  The  test  of  insanity  laid  down  by  the  judges 
iu  McNaghten's  Case,  supra  (usually  known  as  "the  knowledge  of  right  and  wrong 
test"),  prevails  in  many  jurisdictions,  and  "irresistible  impulse"  is  held  not  to  be 
such  insanity  as  will  excuse  from  crime.  U.  S.  v.  Shults,  6  McLean,  121  ;  U.  S.  v. 
Young,  25  F.  R.  710  ;  People  v.  Hoin,  62  Cal.  120;  U.  S.  v.  Guitean,  10  F.  K.  161 
(D.  C.) ;  Brinkley  v.  State,  .^8  Ga.  296  ;  State  v.  Mowry,  37  Kas.  369,  15  Pac.  282; 
State  V.  Scott,  41  Minn.  365  (but  see  State  v.  Shippey,  10  Minn.  223  ;  State  v.  Erb, 
74  Mo.  199  ;  Flanagan  v.  People,  52  N.  Y.  467  (supra)  ;  State  v.  Brandon,  8  Jones,  463  ; 
State  V.  Murray,  11  Or.  413,  5  Pac.  55  ;  Leache  v.  State,  22  Tex.  App.  279,  3  S.  W.  539 
(semble).     See  Andersen  v.  State,  43  Conn.  514. 

Other  jurisdictions,  starting  with  the  same  "  right  and  wrong"  test,  hold  the  view 
that  the  test  is  satisfied  and  the  defendant  excused  if  he  acted  because  of  an  irresistible 
impulse,  and  not  as  a  free  agent.  Cora.  v.  Rogers,  7  Met.  500  (supra)  ;  Bovard  v.  State, 
30  Miss.  600  ;  Brown  v.  Com.,  78  Pa.  122. 

Still  other  jurisdictions  discard  altogether  the  "right  and  wrong"  test,  and  hold 
that  irresistible  impulse  is  an  excuse,  though  the  knowledge  of  right  and  wrong  existed. 
State  V.  Windsor,  5  Harr.  512  ;  Dacey  v.  People,  116  111.  555 ;  Plake  v.  State,  121  Ini 
433  ;  State  v.  Felter,  25  Iowa,  67  ;  Smith  v.  Com.,  1  Duv.  224 ;  Blackburn  v.  State,  23 
Ohio  St.  146;  Dejamette  v.  Com.,  75  Va.  867. 

The  doctrine  of  the  Alabama  and  New  Hampshire  courts,  that  there  is  no  legal 
test  of  insanity,  is  stated  in  the  case  of  Parsons  v.  State,  81  Ala.  577  (supra),  follow- 
ing the  opinion  of  Doe,  J.,  in  State  v.  Pike,  49  N.  H.  399.  See  also  People  v.  Finley, 
38  Mich.  482. 


SECT.  I.J  PEOPLE   V.   GARbUTT.  255 

SECTION    I.  (continued). 

(b)  Proof  of  Insanity. 

PEOPLE  V.  GAKBUTT. 
Supreme  Coukt  of  Michigan.    1868. 

[Reported  17  Michiyun,  'J.] 

CooLKT,  C.  J.'  The  defendant's  counsel  requested  the  court  to 
charge  the  jury  that  sanity  is  a  necessary  element  in  the  commission 
of  crime,  and  must  be  proved  by  the  prosecution  as  a  part  of  their 
case  whenever  the  defence  is  insanity.  Also,  that  where  the  defence 
makes  proof  of  Insanity,  partial  or  otherwise,  whenever  it  shall  be 
made  to  appear  from  the  evidence  that  prior  to  or  at  the  time  of  the 
offence  charged,  the  prisoner  was  not  of  sound  mind,  but  was  atllicted 
with  insanity,  and  such  affliction  was  the  efficient  cause  of  the  act,  he 
ought  to  be  acquitted  by  the  jury.    These  requests  were  refused. 

It  is  not  to  be  denied  that  the  law  applicable  to  cases  of  homicide, 
where  Insanity  is  set  up  as  a  defence,  is  left  in  a  great  deal  of  confu- 
sion upon  the  autliorities ;  but  this,  we  conceive,  springs  mainly  from 
the  fact  that  courts  have  sometimes  treated  the  defence  of  insanity  as 
if  it  were  in  the  nature  of  a  special  plea,  by  which  the  defendant  con- 
fessed the  act  charged,  and  undertook  to 'avoid  the  consequences  by 
showing  a  substantive  defence,  which  he  was  bound  to  make  out 
by  clear  proof.  The  burden  of  proof  is  held  by  such  authorities  to 
shift  from  the  prosecution  to  the  defendant  when  the  alleged  insanity 
comes  in  question ;  and  while  the  defendant  is  to  be  acquitted  unless 
the  act  of  killing  is  established  beyond  reasonable  doubt,  yet  when 
that  fact  is  once  made  out,  he  is  to  be  found  guilty  of  the  criminal 
intent,  unless  by  his  evidence  he  establishes  with  the  like  clearness,  or 
at  least  by  a  preponderance  of  testimony,  that  he  was  incapable  of 
criminal  intent  at  the  time  the  act  was  done.  Regina  v.  Taylor,  4  Cox 
C.  C.  155  ;  Regina  v.  Stokes,  3  C.  &  K.  188 ;  State  v.  Briuyea,  5  Ala. 
244;  State  v.  Spencer,  1  Zab.  202;  State  v.  Stark,  1  Strob.  479. 
These  cases  overlook  or  disregard  an  important  and  necessary  ingre- 
dient in  the  crime  of  murder ;  and  they  strip  the  defendant  of  tiiat 
presumption  of  innocence  which  the  humanity  of  the  law  casts  ovor 
him,  and  which  attends  him  from  the  initiation  of  the  proceedings  until 
the  verdict  is  rendered.  Thus,  in  Regina  v.  Taylor,  sripra,  it  is  said  : 
''In  cases  of  insanity  there  is  one  cardinal  rule  never  to  be  departed 
from,  —  viz.,  that  the  burden  of  proving  innocence  rests  on  the  party 
accused."  And  in  State  c  Spencer,  suirra,  the  rule  is  laid  down 
thus:  *' Where  it  is  admitted  or  clearly  proved  that  the  prisoner  com- 

*  Only  30  much  of  the  opiuion  is  given  aa  relates  to  the  proof  of  insanitj*. 


256  PEOPLE   V.   GARBUTT.  [CHAP.  VIL 

mitted  the  act,  but  it  is  insisted  that  he  was  insane,  and  the  evidence 
leaves  the  question  of  insanity  in  doubt,  the  jury  ought  to  find  against 
him.  The  proof  of  insanity  at  the  time  of  committing  the  act  ought 
to  be  as  clear  and  satisfactory,  in  order  to  acquit  a  prisoner  on  the 
ground  of  insanity,  as  proof  of  committing  the  act  ought  to  be  in 
order  to  find  a  sane  man  guilty."  These  cases  are  not  ambiguous, 
and,  if  sound,  they  more  than  justify  the  Recorder  in  his  charge  in  the 
case  before  us. 

The  defendant  was  on  trial  for  murder.  Murder  is  said  to  be 
committed  when  a  person  of  sound  mind  and  discretion  unlawfully 
killeth  any  reasonable  creature  in  being,  and  under  the  king's  peace, 
with  malice  aforethought,  either  express  or  implied.  3  Coke  Inst,  47  ; 
4  Bl.  Com.  195 ;  2  Chit.  Cr.  L.  724.  These  are  the  ingredients  of  the 
offence :  the  unlawful  killing,  by  a  person  of  sound  mind,  and  with 
malice ;  or,  to  state  them  more  concisely,  the  killing  with  criminal 
intent,  —  for  there  can  be  no  criminal  intent  when  the  mental  condition 
of  the  party  accused  is  such  that  he  is  incapable  of  forming  one. 

These,  then,  are  the  facts  that  are  to  be  established  by  the  prosecu- 
tion in  every  case  where  murder  is  alleged.  The  killing  alone  does 
not  m  any  case  completely  prove  the  offence,  unless  it  was  accom- 
panied  with  such  circumstances  that  malice  in  law  or  in  fact  is  fairly 
to  be  implied.  The  prosecution  takes  upon  itself  the  burden  of  estab- 
lishing not  only  the  killing,  but  also  the  malicious  intent  in  every  case. 
There  is  no  such  thing  in  the  law  as  a  Reparation  of  the  ingredients  of 
the  offence,  so  as  to  leave  a  part  to  be  established  by  the  prosecution, 
while  as  to  the  rest  the  defendant  takes  upon  himself  the  burden  of 
proving  a  negative.  The  idea  that  the  burden  of  proof  shifts  in  these 
cases  is  unphilosophical,  and  at  war  with  fundamental  principles  of 
criminal  law.  The  presumption  of  innocence  is  a  shield  to  tiie  defend- 
ant throughout  the  proceedings,  until  the  verdict  of  the  jury  establishes 
the  fact  that  beyond  a  reasonable  doubt  he  not  only  committed  the 
act,  but  that  he  did  so  with  malicious  intent. 

It  does  not  follow,  however,  that  the  prosecution  at  the  outset  must 
give  direct  proof  of  an  actual  malicious  intent  on  the  part  of  the  de- 
fendant, or  enter  upon  the  question  of  sanity  before  the  defendant  has 
controverted  it.  The  most  conclusive  proof  of  malice  will  usually 
spring  from  the  circumstances  attending  the  killing,  and  the  prosecu- 
tion could  not  well  be  required  in  such  cases  to  go  further  than  to  put 
those  circumstances  in  evidence.  And  on  the  subject  of  sanity,  that 
condition  being  the  normal  state  of  humanity,  the  prosecution  are  at 
liberty  to  rest  upon  the  presumption  that  the  accused  was  sane,  until 
that  presumption  is  overcome  by  the  defendant's  evidence.  The  pre- 
sumption establishes,  j^rima  facie,  this  portion  of  the  case  on  the  part 
of  the  government.  It  "stands  in  the  place  of  the  testimony  of  wit- 
nesses, liable  to  be  overcome  in  the  same  way.  Nevertheless  it  is  a 
part  of  the  case  for  the  government ;  the  fact  which  it  supports  must 
necessarily  be  established  before  any  conviction  can  be  had  ;  and  when 


SECT.  I.]  PEOPLE   V.   GARBUTT.  257 

the  jury  come  to  consider  the  whole  case  upon  the  evidence  delivered 
to  them,  they  must  do  so  upon  the  basis  that  on  each  and  every  por- 
tion of  it  they  are  to  ])e  reasonably  satisfied  before  they  are  at  liberty 
to  find  the  defendant  guilty. 

This  question  of  the  burden  of  proof  as  to  criminal  intent  was  con- 
sidered by  this  court  in  the  case  of  Maher  /-.The  People,  10  Mich.  212  ; 
and  a  rule  was  there  laid  down  which  is  entirely  satisfactory  to  us, 
and  which  we  have  no  disposition  to  qualify  in  any  manner.  Applying 
that  rule  to  the  present  case,  we  think  that  the  Recorder  did  not  err  in 
refusing  to  charge  that  proof  of  sanity  must  be  given  by  the  prosecu- 
tion as  a  part  of  their  case.  They  are  at  liberty  to  rest  upon  the 
presumption  of  sanity  until  proof  of  the  contrary  condition  is  given 
by  the  defence.  But  when  any  evidence  is  given  which  tends  to  over- 
throw that  presumption,  the  jury  are  to  examine,  weigh,  and  pass  upon 
it  with  the  understanding  that  although  the  initiative  in  presenting  the 
evidence  is  taken  by  the  defence,  the  burden  of  proof  upon  this  part 
of  the  case,  as  well  as  upon  the  other,  is  upon  the  prosecution  to 
establish  the  conditions  of  guilt.  Upon  this  point  the  case  of  People 
V.  McCann,  IG  N.  Y.  58,  is  clear  and  satisfactory,  and  the  cases  of 
Commonwealth  v.  Kimball,  24  Pick.  373  ;  Commonwealth  v.  Dana, 
2  Met.  340  ;    State  v.  Marler,  2  Ala.  43  ;   Commonwealth  v.  McKie, 

I  Gray,  61 ;  Commonwealth  v.  Rogers,  7  Met.  500,  and  Hopps  v- 
People,  31  111.  385,  may  be  referred  to  in  further  illustration  of  the 
principle.  See  also  Doty  v.  State,  7  lilackf.  427.  The  recent  case  of 
Walter  v.  People,  32  N.  Y.  147,  does  not  overrule  the  case  of  People  i'. 
McCann,  but,  so  far  as  it  goes,  is  entirely  in  harmony  with  the  views 
here  expressed. 

Note  on  Burden  of  Proof  of  Insanity.  — In  most  jurisdictions  the  burden  is 
upon  the  accused  to  prove  his  insanity  by  a  preponderance  of  evidence.  U.  S.  v.  Ridge- 
way,  31  F.  R.  144;  Parsons  v.  State,  81  Ala.  577,  2  So.  854  {supra);  Casat  v.  State, 
•50  Ark.  511;  Guiteau's  Case,  10  F.  R.  1^1  (D-  C);  People  v.  Walter,  1  Idaho,  386; 
State  V.  Felter,  32  la.  49;  Smith  v.  Com.l  t)uv.  224;  State  v.  Coleman,  27  La.  Ann. 
691;  State  v.  Lawrence,  57  Me.  574  (infra);  Com.  v.  Eddy,  7  Gray,  583;  Bonfanti  v. 
State,  2  Minn.  123;  State  v.  Huting,  21  Mo.  464;  State  v.  Spencer,  21  N.  J.  (1  Zab.) 
19G;  State  v.  Potts,  100  N.  C.  457;  Clark  v.  State,  12  Ohio,  495  n.;  Ortwein  v.  Com. 
76  Pa.  414;  State  v.  Bundy,  24  S.  C.  439;  Dove  v.  State,  3  Heisk.  348;  Massengale  v. 
State,  24  Tex.  App.  181,  6  S.  W.  35;  Boswell  v.  Com.  20  Gratt.  860 ;  State  v.  Strauder, 

II  W.  Va.  745,  823. 

In  some  jurisdictions,  however,  the  burden  is  upon  the  government  to  prove  the 
sanity  of  the  accused,  like  all  other  facts  in  issue,  beyond  a  reasonable  doubt ;  though 
the  burden  of  producing  evidence  of  insanity  in  the  first  instance  is  upon  the  accused. 
State  V.  Reidell  (Del.),  14  Atl.  550;  Dacey  v.  People,  116  111.  555,  571;  Plake  v.  State, 
121  Ind.  433;  State  v.  Nixon,  32  Kas.  205;  People  v.  Garbutt,  17  Mich.  9  ('niprn); 
Wright  17.  People,  4  Neb.  407;  State  v.  Bartlett,  43  N.  H.  224;  People  v.  McCann,  16 
N.  Y.  58  isemble,  per  Brown,  J. ;  but  see  Wagner  v.  People,  4  Abb.  App.  509). 

In  Oregon,  by  statute,  the  accused  must  prove  insanity  beyond  a  reasonable  doubt. 
State  V.  Murray,  11  Or.  413. 

17 


253  STATE  V.    LAWRENCE.  [CHAP.  VII. 


STATE   V.  LAWRENCE. 
ScpREME  Judicial  Court  of  Maine.    1870. 

[Reported  57  Maine,  574.] 

Danforth,  J.^  The  question  as  to  the  burden  of  proof  in  criminal 
cases,  where  insanity  is  set  up  as  a  defence,  is  one  of  much  difficulty, 
though  until  recently  the  authorities  seem  to  have  been  uniform  in 
imposing  it  upon  the  defendant.  Quite  lately  doubts  have  been  sug- 
gested, and,  in  a  few  instances,  judicial  tribunals,  entitled  to  the  highest 
respect,  have  come  to  a  conclusion  the  reverse  of  the  former  decisions. 
As  a  matter  of  principle,  the  question  lies  in  a  very  narrow  compass. 
The  difficulty  is  in  the  starting-point,  in  determining  the  premises. 
These  being  once  settled,  the  conclusion  is  evident.  Those  who  main- 
tain that  the  burden  is  upon  the  prosecutor,  contend  that  sanity  is  an 
elemental  part  of  the  crime,  and  is  a  necessary  part  of  its  definition, 
and  as  such  the  jury  must  have  the  same  satisfaction  of  its  truth  as  of 
any  other  part.  It  is  undoubtedly  true  that  there  can  be  no  guilt 
except  as  the  result  of  the  action  of  a  sound  mind,  there  can  be  no 
crime  except  there  be  a  criminal ;  nevertheless,  there  is  a  palpable  dis- 
tinction between  these  two.  One  cannot  exist  without  the  other ;  still 
they  are  two,  and  not  one  and  the  same.  The  person  doing  the  act  is 
not  the  act  itself.  He  may  or  may  not  be  responsible  for  the  act,  but 
in  no  sense  can  he  be  the  act.  So,  too,  whether  he  committed  the  act 
is  one  question,  and  whether  he  is  responsible  for  that  act  is  another 
and  entirely  different  question.  Now  it  should  not  be  forgotten  that 
we  start  with  the  legal  presumption  that  all  men  are  sane  and  respon- 
sible for  all  their  acts,  —  in  other  words,  that  no  man  is  insane  and 
irresponsible,  —  precisely  as  we  do  with  the  proposition  that  no  man  has 
legal  authority  for  doing  that  which  otherwise  would  be  a  crime  or  a 
trespass.  Hence  the  statute  defines  murder  to  be  "the  unlawful  kill- 
ing of  a  human  being,  with  malice  aforethought,  either  express  or 
implied."  Here  are  all  the  elements  necessary  to  constitute  the  crime, 
assuming  a  responsible  agent ;  not  one  word  as  to  what  is,  or  is  not, 
required  to  make  him  responsible.  And  so  of  all  other  statute  defini- 
tions,— whoever  shall  do  the  certain  acts  set  out,  shall  be  guilty.  Here, 
as  everywhere  in  the  law,  sanity  is  assumed  and  treated  as  an  essential 
attribute  of  humanity.  The  indictment  follows  the  statute,  setting  out 
all  the  acts  deemed  essential  to  the  crime,  but  omitting  all  reference 
to  the  capacity  of  the  accused.  Of  all  that  is  set  out  in  the  indictment 
he  is  presumed  innocent,  and  that  must  be  proved  and  nothing  else. 
"When  that  is  proved  he  is  convicted,  unless  he  interposes  some  defence 
other  than  a  sane  denial  of  the  allegations  against  him.  A  simple  plea 
of  not  guilty,  puts  in  issue  the  allegations  and  only  the  allegations  in 
the  indictment ;  and  as  to  them  the  prosecution  has  the  affirmative. 

^  Partonly  of  the  opiuion  is  giveu. 


SECT,  l]  STATE    V.    LAVVKENCE.  \259 

Hut  if  tlie  accused  would  put  in  issue  any  other  allegation,  any  ques- 
tion as  to  his  capacity  or  responsibility,  he  nuist  do  it  by  an  atlirinative 
statement.  If  he  puts  in  the  plea  of  Insanity,  he  assumes  the  aflirmative  ; 
he  changes  ttie  issue.  And  it  is  immaterial  wlu-ther  it  is  in  writing, 
or  merely  verbal ;  iu  cither  case  it  just  as  effectually  raises  a  new  issue. 
Jt  is  true  it  may  be  resorted  to  in  connection  with  the  plea  of  not  guilty, 
but  it  is  not  and  cannot  be  a  part  of  it.  The  plea  of  insanity  is,  and 
of  necessity  must  be,  a  plea  of  confession  and  avoidance.  It  does  not 
deny  a  single  allegation  in  the  indictment,  but  simply  says,  grant  all 
these  allegations  to  be  true,  that  all  these  acts  have  been  done,  and 
still  guilt  does  not  follow,  because  the  doer  of  them  is  not  responsible 
therefor.  It  does  not  meet  any  question  propounded  by  the  indictment, 
but  raises  one  outside  of  it.  It  is  not  a  mere  denial,  but  a  positive 
allegation.  It  is,  however,  said  in  the  argument  that  the  plea  of  insan- 
ity does  deny  the  allegation  of  malice,  because  the  insane  is  not  capable 
of  such  a  state  of  the  mind.  If  the  term  malice  is  used  in  the  common 
meaning  of  that  word,  it  is  not  necessary  now  to  discuss  the  question 
as  to  how  far  those  who  are  insane  may  or  may  not  indulge  it,  though 
it  may  well  be  doubted  whether,  in  many  instances,  a  person  may  not 
be  so  unsound  in  mind  as  to  be  irresponsible,  and  yet  be  actuated  by 
malice  as  implying  hatred.  Hut  however  this  may  be,  he  may  have 
malice  in  the  legal  and  technical  sense,  or  he  may  be  so  wilful  and 
deliberate  in  his  action,  that  the  law,  in  the  absence  of  [)roof  of  insan- 
ity, will  conclusively  infer  malice.  When  insanity  is  found,  it  does 
uot  show  that  the  act  was  any  less  wilful,  or  deliberate,  or  intentional 
even  ;  but  it  does  show  an  excuse,  an  ii-responsibility  for  what  would 
otherwise  have  been  criminal.  So  here,  as  in  other  respects,  the  plea 
of  insanity  does  not  deny,  but  avoids;  confesses  this  element  as  well 
as  the  others,  but  excuses.  It  would  seem,  then,  that  the  question  of 
insanity  can  never  be  raised,  unless  by  the  prisoner ;  and  by  him  only 
in  an  affirmative  allegation,  such  as  carries  with  it  the  burden  of  proof. 

Kvery  man  is  presumed  to  be  innocent.  This  presumption  stands 
till  every  reasonable  doubt  is  removed.  The  law  presumes  every  man 
sane.  Why  should  not  this  presumption  stand  till  removed  by  at  least 
a  preponderance  of  evidence  ?  Does  it  not,  and  must  it  not  necessarily 
still  stand,  though  we  may  have  some  doubts  of  its  truth?  That  which 
exists  is  not  destroyed  simply  because  it  may  be  enveloped  in  a  thin 
cloud.  However  we  may  theorize,  it  will  still  exist  until  demolished. 
If  this  presumption  is  to  be  overthrown  by  a  doubt,  as  well  might  it 
be  abolished  at  once,  and  leave  the  question  of  sanity,  like  that  of 
malice,  to  be  proved  by  the  government  or  implied  from  the  circum- 
stances of  each  case.  Hut  this  presumi)tion  cannot  be  abolished.  It 
is  inherent  in  human  nature,  and  will  exist  as  long  as  rationality  is  an 
attribute  of  man,  and  existing,  it  should  have  some  meaning,  some 
force  ;  enough,  at  least,  to  enable  it  to  withstand  something  more  than 
a  reasonable  doubt. 

In  Commonwealth  v.  Mackie,  1  Gray,  61,  is  very  clearly  stated  the 


260  STATE   V.    LAWRENCE.  [cHAP.  YII. 

limits  of  the  burden  of  proof  in  criminal  cases  as  resting  upon  the 
government,  where  the  issue  is  raised  by  a  simple  denial  of  the  allega- 
tions in  the  indictment.  It  is  there  held  that  "where  the  defendant 
sets  up  no  separate  independent  fact  in  answer  to  a  criminal  charge, 
but  confines  his  defence  to  the  original  transaction  charged  as  criminal, 
with  its  accompanying  circumstances,  the  burden  of  proof  does  not 
change,  but  remains  upon  the  government  to  satisfy  the  jury  that  the 
act  was  unjustifiable  and  unlawful."  It  is  further  said  in  the  opinion, 
"  There  may  be  cases  when  a  defendant  relies  on  some  distinct, 
substantive  ground  of  defence  to  a  criminal  charge,  not  necessarily 
connected  with  the  transactions  on  which  the  indictment  is  founded 
(such  as  insanity,  for  instance),  in  which  the  burden  of  proof  is  shifted 
upon  the  defendant." 

In  the  more  recent  case  of  Commonwealth  v.  Eddy,  7  Gray,  583, 
where  the  question  as  to  the  effect  of  the  plea  of  insanity'  came  directl}' 
before  the  court,  it  was  held  that  the  burden  of  proof  was  upon  the 
defendant,  and  that  he  must  satisfy  the  jury  of  his  insanity  by  a  pre- 
ponderance of  evidence. 

In  accordance  with  this  authority  are  many  others  entitled  to  great 
respect.  United  States  v.  Holmes,  1  Clifford,  117;  Wharton's  Am. 
Crim.  Law,  §  16,  7,  11,  and  cases  cited;  2  Greenl.  on  Ev.  §  373,  and 
notes. 

But  in  this  matter  we  are  not  left  to  the  principles  of  the  common 
law  alone.  Our  statute  law,  by  implication  at  least,  leads  to  the  same 
conclusion.  By  the  R.  S.,  1859,  c.  137,  §  2,  it  is  provided  that  "  when 
the  grand  jury  omits  to  find  an  indictment  against  any  person  arrested 
by  legal  process  to  answer  for  any  offence  by  reason  of  insanity,  they 
shall  certify  that  fact  to  the  court ;  and  when  a  traverse  jury,  for  the 
same  reason,  acquits  any  person  indicted,  they  shall  state  that  fact  to 
the  court  when  they  return  their  verdict."  And,  in  either  case,  he  is 
to  be  restrained  in  prison  or  the  insane  hospital  till  restored  to  his  right 
mind,  or  delivered  according  to  law.  It  can  hardly  be  supposed  that 
the  legislature  expected  or  intended  that  the  jury  should  return  as  a 
fact  the  insanity  of  the  prisoner  when  they  have  only  a  reasonable 
doubt  of  his  sanity,  or  that  he  should  be  detained  in  custody  till 
restored  to  his  right  mind,  when  there  is  not  suflScient  proof  to  make 
even  a  prima  facie  case  that  he  is  otherwise  than  sane.  Our  conclu- 
sion is,  that  upon  this  point  as  well  as  upon  the  others,  the  ruling 
was  sufficiently  favorable  to  the  prisoner.  Exceptions  overruled. 


SECT.  ILJ  REGINA   V.   DOODT.  2G1 

SECTION   II. 

Intoxication. 

PEARSON'S   CASE. 
Carlisle  Assizes.     1835. 

[Reported  2  Lewin,  144.] 

The  prisoner  was  iinlicled  for  the  luuiiler  of  his  witc. 

It  was  proved  that  in  a  fit  of  driiulienness  he  had  beaten  her  in  a  cruel 
manner  with  a  rake-shank,  and  that  she  died  of  the  wounds  and  bruises 
which  she  received.     His  only  defence  was  that  he  was  drunk. 

Pakk,  J.     Vohintary  drunkenness  is  no  excuse  for  crime. 

If  a  party  be  made  drunk  by  stratagem  or  the  fraud  of  another  he 
is  not  responsible. 

So  drunkenness  may  be  taken  into  consideration  to  explain  the 
probability  of  a  party's  intention  in  the  case  of  violence  committed 
on  sudden  provocation. 


REGINA  V.   DOODY. 
Stafford  Assizes.     1854. 

[Reported  6  Cox  C.  C.  463.] 

The  prisoner  was  indicted  for  unlawfully  attempting  to  commit 
suicide  at  Wolverhampton,  on  the  5th  of  March,  1854. 

It  appeared  that  the  prisoner  was  at  the  George  Inn,  Wolverhamp- 
ton, on  the  night  of  the  5th  March,  and  about  ten  o'clock  went  to  the 
water-closet.  He  was  soon  afterwards  found  there,  suspended  to  a 
beam  by  a  scarf  tied  round  bis  neck.  He  was  cut  down,  and  anima- 
tion restored.  On  being  taken  into  custody  and  charged  with  the 
offence,  he  stated  that  he  had  led  a  bad  course  of  life,  and  liad  no 
money  or  friends.  He  now  said  in  his  defence  that  he  had  been 
drinking  for  nine  days  before,  and  did  not  know  what  he  was  doing. 
There  was  some  evidence  to  show  that,  although  he  was  partially 
intoxicated,  he  was  quite  capable  of  taking  care  of  himself. 

WnniT.MAN,  ,1.,  told  the  jury  that  the  offence  charged  constituted, 
beyond  all  doubt,  a  misdemeanor  at  couimon  law.  The  question  for 
them  to  consider  was  whether  the  prisoner  had  a  mind  cai)able  of  con- 
templating the  act  charged,  and  whether  he  did,  in  fact,  intend  t«  take 
aw.'\y  his  life.  The  prisoner  alleged  in  his  defence  that  he  was  drunk 
al  the  time,  which  must  be  taken  to  mean  that  he  had  no  deliberate 


262  REGINA   V.   DAVIS.  [CHAP.  VII. 

intention  to  destroy  his  life  ;  for  the  mere  fact  of  drunkenness  in  this, 
as  in  other  eases,  is  not  of  itself  an  excuse  for  the  crime,  but  it  is  a 
material  fact  in  order  to  arrive  at  the  conclusion  whether  or  no  the 
prisoner  really  intended  to  destroy  his  life. 

Verdict,  Guilty.    Sentence^  three  months'  imprisonment. 


REGINA  V.    GAMLEN. 
Bristol  Assizes.     1858. 

{^Reported  1  Foster  and  Finlason,  90.] 

Assault.  The  charge  arose  out  of  an  affray  at  a  fair,  and  there 
seemed  some  ground  for  supposing  that  the  prisoner  acted  under 
apprehension  of  an  assault  upon  himself.     All  concerned  were  drunk. 

Chowder,  J.  Drunkenness  is  no  excuse  for  crime;  but  in  consid- 
ering whether  the  prisoner  apprehended  an  assault  on  himself,  you 
may  take  into  account  the  state  in  which  he  was.        Not  guilty.'^ 


REGINA  V.   DAVIS. 
Newcastle  Assizes.     1881. 

[Reported  14  Cox  C.  C.  563.] 

William  Davis,  thirty-eight,  laborer,  was  charged  with  feloniously 
wounding  his  sister-in-law,  Jane  Davis,  at  Newcastle,  on  the  14th  day 
of  January,  with  intent  to  murder  her. 

On  the  14th  day  of  January,  1881,  the  prisoner  (who  had  been  pre- 
viously drinking  heavily,  but  was  then  sober)  made  an  attack  upon 
his  sister-in-law,  Mrs.  Davis,  threw  her  down,  and  attempted  to  cut 
her  throat  with  a  knife.  Ordinarily  he  was  a  very  mild,  quiet,  peace- 
able, well-behaved  man,  and  on  friendly  terms  with  her.  At  the  police 
station  he  said  :  "  The  man  in  the  moon  told  me  to  do  it.  I  will  have 
to  commit  murder,  as  I  must  be  hanged."  He  was  examined  by  two 
medical  men,  who  found  him  suffering  from  delirium  tremens,  result- 
ing from  over-indulgence  in  drink.  According  to  their  evidence  he 
would  know  what  he  was  doing,  but  his  actions  would  not  be  under 
his  control.  In  their  judgment  neither  fear  of  punishment  nor  legal 
nor  moral  considerations  would  have  deterred  him ;  nothing  short  of 
actual  physical  restraint  would  have  prevented  him  acting  as  he  did. 
He  was  disordered  in  his  senses,  and  would  not  be  able  to  distinguish 

1  Ace.  Marshall's  Case,  1  Lewin  C.  C.  76.  But  see  Com.  v.  Hawkins,  3  Gray, 
463.  —  Edl 


SECT.  II.]  REOINA    r.    HAVI.'?.  2C3 

between  moral  right  and  wrong  at  the  time  ho  coniniittLcl  the  act. 
Under  proper  care  aiul  treatment  he  recovered  in  a  week,  and  was 
tlien  perfectly  sensihk'. 

For  tlie  defence  it  was  sulnnittcd  that  he  was  of  unsound  mind  at 
the  time  of  the  commission  of  the  act,  and  was  not  responsible  for  his 
actions. 

Steimien',  .1..  to  the  jury.  The  prisoner  at  the  bar  is  cliarged  with 
having  feloniously  wounded  his  sister-in-law,  Jane  Davis,  on  the  14th 
dav  of  .January  last,  with  intent  to  murder  lier.  y<ni  will  have  to 
consider  wduther  he  was  in  such  a  sUite  of  mind  as  to  be  tiioroughly 
responsible  for  his  actions  ;  and  with  regard  to  that  I  must  explain  to 
you  what  is  the  kind  or  degree  of  insanity  which  relieves  a  man  from 
responsibility.  N<)lx>dy  must  suppose  —  and  I  hope  no  one  will  be  led 
for  one  moment  to  suppose —  that  drunkeimess  is  any  kind  of  excuse 
for  crime.  If  tliis  man  ha«l  been  raging  drunk  and  had  stabbed  his 
sister-in-law  and  killed  her,  he  would  have  stood  at  the  bar  guUty  of 
murder  beyond  all  doubt  or  question.  But  drunkenness  is  one  thing, 
and  the  diseases  to  which  drunkenness  leads  are  diflferent  things ;  and 
if  a  man  by  drunkenness  brings  on  a  state  of  disease  which  causes 
such  a  degree  of  madness,  even  for  a  time,  which  would  have  relieved 
him  from  responsibility  if  it  had  been  caused  in  any  other  way,  then 
he  would  not  be  criminally  responsible.  In  my  opinion,  in  such  a  case 
the  man  is  a  madman,  and  is  to  be  treated  as  such,  although  his  mad- 
ness is  only  temporary.  If  you  think  he  was  so  insane  that  if  his 
insanity  had  been  produced  by  other  causes  he  would  not  be  respon- 
sible for  his  actions,  then  tiie  mere  fact  that  it  w^s  caused  by  drunk- 
enness will  not  prevent  it  having  the  effect  which  otherwise  it  would 
have  had,  of  excusing  him  from  punishment.  Drunkenness  is  no  ex- 
cuse, but  (JeUrium  tremens  caused  by  drunkenness  may  be  an  excuse 
if  you  think  it  produces  such  a  state  of  mind  as  would  otherwise 
relieve  him  from  responsibility.  A  person  may  be  both  insane  and 
responsible  for  his  actions,  and  the  great  test  laid  down  in  McNagh- 
ten's  Case  (10  CI.  &  Fin.  200  ;  1  C.  «fe  K.  130  n.)  was  whether  he  did 
or  did  not  know  at  the  time  that  the  act  he  was  committing  was  wrong. 
If  he  did  —  even  though  he  were  mad  —  he  must  be  responsible;  btit  if 
his  madness  prevented  that,  then  he  was  to  be  excused.  As  I  under- 
stand the  law,  any  disease  which  so  disturbs  the  mind  that  you  cannot 
think  calmly  and  rationally  of  all  the  different  reasons  to  which  we 
refer  in  considering  the  rightness  or  wrongness  of  an  action, — any 
tlisease  which  so  disturbs  the  mind  that  you  cannot  perform  that  duty 
with  some  moderate  degree  of  calmness  and  reason,  may  be  fairly  said 
to  prevent  a  man  from  knowing  that  what  he  did  was  wrong.  Deli- 
rium trentens  is  not  the  primary  but  the  secondary  consequence  of 
drinking,  and  both  the  doctors  agree  that  the  pris<iner  was  unable  to 
control  his  conduct,  and  that  nothing  short  of  actual  physical  restraint 
[would  have  deterred  him  from  the  commission  of  tiie  act.  If  yon 
think  there  was  a  distinct  disease  caused  by  drinking,  but  different 


264  PEOPLE   V.    ROGERS.  [CHAJP.  VIL 

from  drunkenness,  and  that  by  reason  thereof  he  did  not  know  that  the 
act  was  wrong,  you  will  find  a  verdict  of  not  guilty  on  the  grouud  of 
insanity ;  but  if  you  are  not  satisfied  with  that,  you  must  find  him 
guilty  either  of  stabbing  with  intent  to  murder  or  to  do  grievous  bodily 
harm. 

The  jury  returned  a  verdict  of  not  guilty  on  the  ground  of  insanity. 

The  prisoner  was  ordered  to  be  detained  during  Her  Majesty's 
pleasure.^ 


PEOPLE  V.  ROGERS. 
Court  of  Appeals  of  New  York.     1858. 

[Reported  18  New  York,  9.] 

Denio,  J.^  The  principal  exception  to  the  judge's  charge  which  is 
now  relied  on,  relates  to  the  consideration  which  should  be  given  to 
the  proof  that  the  prisoner  was  intoxicated  at  the  time  of  the  homi- 
cide. The  commission  of  crime  is  so  often  the  attendant  upon  and 
the  consequence  of  drunkenness,  that  we  should  naturally  expect  the 
law  concerning  it  to  be  well  defined.  Accordingly  we  find  it  laid  down 
as  early  as  the  reign  of  Edward  VI.  (1548),  that  "  if  a  person  that  is 
drunk  kills  another,  this  shall  be  felony,  and  he  shall  be  hanged  for  it. 
And  yet  he  did  it  through  ignorance,  for  when  he  was  drunk  he  had 
no  understanding  nor  memory- ;  but  inasmuch  as  that  ignorance  was 
occasioned  by  his  own  act  and  folly,  and  he  might  have  avoided  it, 
lie  shall  not  be  privileged  thereby'."  Plowden,  19.  The  same  doc- 
trine is  laid  down  by  Coke  in  the  Institutes,  where  he  calls  a  drunk- 
ard voluntarius  dcemo7i,  and  declares  that  "whatever  hurt  or  ill  he 
doeth,  his  drunkenness  doth  aggravate  it"  3  Thomas's  Coke,  46. 
So  in  his  Reports  it  is  stated  that  "although  he  who  is  drunk  is  for 
the  time  non  comjyos  mentis,  yet  his  drunkenness  does  not  extenuate 
his  act  or  offence,  nor  turn  to  his  avail ;  but  it  is  a  great  offence  in 
itself,  and  therefore  aggravates  his  offence,  and  doth  not  derogate 
from  the  act  which  he  did  during  that  time,  —  and  that  as  well  in  cases 
touching  his  life,  his  lands,  his  goods,  or  an}'  other  thing  that  concerns 
him."  Beverle3''s  Case,  4  Co.  125,  a.  Lord  Bacon,  in  his  "  Maxims 
of  the  Law,"  dedicated  to  Queen  Elizabeth,  asserts  the  doctrine  thus : 
"  If  a  madman  commit  a  felony,  he  shall  not  lose  his  life  for  it,  be- 
cause his  infirmity  came  b}'  the  act  of  God ;  but  if  a  drunken  man 
commit  a  felony,  he  shall  not  be  excused,  because  the  imperfection 
came  b}'  his  own  default."  Jiule  V.  And  that  great  and  humane 
Judge,    Sir   Matthew   Hale,    in   his    "  History   of    the   Pleas   of  the 

1  Ace.  U.  S.  V.  McGlue,  1  Curt.  1;  Beasley  v.  State,  50  Ala.  149;  Fisher  v  State,  64 
Ind.  435;  Maconnehey  v.  State,  5  Ohio  St.  77;  State  i;.  Robinson,  20  W.  Va.  713.  —  Ed. 
*  Parts  only  of  the  opinions  are  given. 


SECT.  II.]  PEOPLK   V.    ROGERS.  265 

Ciowu,"  written  nearly  t\Yo  luuulrcd  years  ago,  doe.s  not  countenance 
any  relaxation  of  the  rule.     "The  thin!  kind  of  dementia"  he  .says, 
"  is  that  which    is   dctnentot   afertaUi,   namely,    drunkenness.     Tliis 
vice  doth  deprive  men  of  the  use  of  reason,  and  i)ut.s  many  men  into 
a   perfect   hut   temporary  frenzy,    and    therefore,   according  to  some 
civilians,  such  a  person  committing   homicide  .shall  not  he   punished 
simply  for  the  crime  of  homicide,  but  siiall  sulfer  for  his  drunkenness, 
answerable  to  the  nature  of  the  crime  occa.sioned  thereby,  so  that  yet 
the  primal  cause  of  the  puni.shment  is  rather  the  drunkenness  tlian  the 
crime  committed   in   it ;   hut  h\j  the  laics  of  Emjlund  such  a  person 
shall  have  no  privilege  by    his  voluntarily  contracted    madness,   but 
shall  have  the  same  judgment  as  if  be  were  in  his  right  senses."     He 
states  two  exceptions  to  the  rule  :  one  where  the  intoxication  is  witliout 
fault  on   his  part,  as  where   it  is  caused  by  drugs  administered  by  an 
unskilful  physician;  and  the  other,  where  indulgence  in  habits  of  in- 
temi)erance  has  produced  permanent  mental  disease,  which  he  calls 
fixed  fretizij.     1   Hale,  32.     Coming  down  to  more  modern  times,  we 
find  the  principle  insisted  upon  by  the  enlightened  Sir  William  lilack- 
stone.     "The  law  of  England,"  he  says,  "considering  how  ea.sy  it  is 
to  contract  this  excuse,  and  how  weak  an  excuse  it  is  (though  real), 
will  not  suffer  any    man    thus    to   privilege   one    crime  by  another." 
4  Com.  26.     A  few  recent  cases  in  the  English  courts  will  show  the 
consistency  with   which  the  rule  has  been  followed  down  to  our  own 
times.      In  Burrow's  Case  (Lewin's  Cr.  C.  75,  a.  u.   1823)  the  pris- 
oner was  indicted  for  a  rape,  and  urged  that  he  was  in  iKpior.     Hol- 
royd,  J.,  aiUlressed  the  jury  as  follows:  "  It  is  a  maxim  in  law  that 
if  a  man  gets  himself  intoxicated,  he  is  answerable  to  the  consequences, 
and  is  not  excusable  on  account  of  any  crime  he  may  commit  when 
infuriated    by    licpior,    provided    he    was    previously   in  a   fit  state  of 
reason  to  know  right   from    wrong.     If,  indeed,  ihe  infuriated   state  at 
which  he  arrives  should  continue  and  become  a  lasting  malady,  then 
he  is  not  answerable."     A  similar  charge  was  given  to  the  Jury  in  the 
next  case  in  the  same  book,  where  drunkenness  was  urged  upon  the 
trial  of  an  indictment  for  burglary.     Patrick  Carroll  was  tried  in  1835, 
at  the  Central  Criminal  Court,  before  a  judge  of  the  King's  Hench  and 
a  judge  of  the  Common  Pleas,  for  the  murder  of  Elizabeth  Browning. 
It  appeared  that  shortly  before  the  homicide  the  prisoner  was  very 
drunk.     His     counsel,    thougii    he  admitted    that   drunkenness  could 
not  excuse  from  the   commission   of  crime,  yet   submitted    that  in  a 
charge    for   nmrder,    the    material    question    being    whether    the    act 
wiis  premeditated  or  done  only   with  sudden  heat  and   imi)ulse,   the 
fact  of  the  party  being  intoxicated  was  a  proper  circumstance  to  be 
taken  into  consideration,  and  he  referred   to  a  case  before  Holroyd, 
J.,  rejwrted  in  2   Russell  on  Crimes  8,  Rex  v.  Grindley,  where  that 
doctrine  was  laid  down.     Parke.  J.,  in  summing  up,  said:  "Highly 
as  I  respect  that  late  excellent  judge.  I  ditfer  with  him.  and  my  brother 
Littlcdale  [the  associate]  agrees  with  me.     He   once   acted   on   that 


266  PEOPLE   V.    ROGERS.  [CHAP.  VII. 

case,  but  afterwards  retracted  his  opinion,  and  there  is  no  dmibt  that 
that  case  is  not  law.  I  think  that  there  would  be  no  safety  for  human 
life  if  it  were  considered  as  law."  The  prisoner  was  convicted  and 
executed.  7  Carr.  &  Payne,  145.  It  would  be  easy  to  multiply 
citations  of  modern  cases  upon  this  doctrine  ;  but  it  is  unnecessary, 
as  they  all  agree  upon  the  main  proposition,  namely,  that  mental 
alienation,  produced  by  drinking  intoxicating  liquors,  furnishes  no  im- 
munity for  crime.  Rex  v.  Meakin,  7  Carr.  &  Payne,  297,  and  Rex 
V.  Thomas,  7  id.  817,  may  be  mentioned;  and  in  this  countr}'.  The 
United  States  v.  Drew,  5  Mason  C.  C.  R.  28,  and  The  United  States 
V.  McGlue,  1  Curtis  C.  C.  R.  1,  will  be  found  to  maintain  the  principle 
upon  the  authority  of  Judge  Storj'  and  Judge  Curtis,  of  the  Supreme 
Court  of  the  United  States.  These  last  two  cases  are  interesting,  not 
only  for  stating  the  general  principle,  but  for  confirming  the  distinction 
laid  down  so  long  ago  by  Sir  Matthew  Hale,  that  where  mental 
disease,  or  as  he  terras  it  a  "fixed  frenzy,"  is  shown  to  be  the  result 
of  drunkenness,  it  is  entitled  to  the  same  consideration  as  insanity 
arising  from  an^-  other  cause.  The  first  of  them  was  a  case  of  delirium 
tremens,  and  Judge  Story  directed  an  acquittal  on  that  account.  In 
the  other  the  evidence  left  it  doubtful  whether  the  furious  madness 
exhibited  by  the  prisoner  was  the  result  of  present  intoxication,  or  of 
delirium  supervening  upon  long  habits  of  indulgence.  This  state  of 
the  evidence  led  Judge  Curtis  to  state  the  rule  and  the  exception  with 
great  force  and  clearness.  In  this  state  the  cases  of  The  People  v. 
Hammell  and  The  People  v.  Robinson,  reported  in  the  second  volume 
of  Judge  Parker's  Reports  (pp.  223,  235),  show  the  consistency  with 
which  the  doctrine  has  been  adhered  to  in  our  criminal  courts  and  in 
the  Supreme  Court.  The  opinion  in  the  last  ease  contains  a  reference 
to  several  authorities  to  the  same  effect  in  the  other  states  of  the 
Union.  Where  a  principle  in  law  is  found  to  be  well  established  by  a 
series  of  authentic  precedents,  and  especially  where,  as  in  this  ca.se, 
there  is  no  conflict  of  authority,  it  is  unnecessary  for  the  judges  to 
vindicate  its  wisdom  or  policy.  It  will,  moreover,  occur  to  every 
mind  that  such  a  principle  is  absolutely  essential  to  the  protection  of 
life  and  property-.  In  the  forum  of  conscience  there  is  no  doubt  con- 
siderable difference  between  a  murder  deliberately  planned  and  exe- 
cuted by  a  person  of  unclouded  intellect,  and  the  reckless  taking  of 
life  by  one  infuriated  b}'  intoxication ;  but  human  laws  are  based  upon 
considerations  of  policy,  and  look  rather  to  the  maintenance  of  per- 
sonal security'  and  social  order  than  to  an  accurate  discrimination  as 
to  the  moral  qualities  of  individual  conduct.  But  there  is,  in  truth, 
no  injustice  in  holding  a  person  responsible  for  his  acts  committed  in 
a  state  of  voluntary  intoxication.  It  is  a  duty  which  every  one  owes 
to  his  fellow-men  and  to  society,  to  say  nothing  of  more  solemn  obli- 
gations, to  preserve,  so  far  as  it  lies  in  his  own  power,  the  inestimable 
gift  of  reason.  If  it  is  perverted  or  destroyed  by  fixed  disease,  though 
brought  on  by  his  own  vices,  the  law  holds  him  not  accountable.     But 


SECT.  I.]  PF.OrLE   V.    ROGERS.  2C>7 

if  b)'  a  voliintjin"  act  he  toinporarily  casts  ofT  the  restraints  of  reason 
and  conscience,  no  wrong  is  done  him  if  he  is  consiih-red  answerable 
for  any  injury  which  in  tiiat  state  he  may  <lo  to  otliers  or  to  society. 

Before  proceeding  to  examine  the  judge's  charge,  it  is  necessary  to 
state  one  other  principle  connected  with  the  subject  of  intoxication. 
I  am  of  tin;  opinion  that,  in  cases  of  homicide,  the  fact  that  the  ac- 
cused was  under  the  intlucuce  of  Twiuor  may  l)e  given  in  evidence  in 
his  behalf.  The  effect  wiiich  the  evidence  ought  to  have  upon  the 
verdict  will  depend  upon  the  other  circumstances  of  the  case.  Thus, 
in  Rex  r.  Carroll,  which  was  a  case  of  murder  b}-  stabbing,  there  was 
not,  as  the  court  considered,  an\-  provocation  on  tlie  part  of  tlie  de- 
ceased, and  it  was  held  tliat  the  circumstance  that  tlie  prisoner  was 
intoxicated  was  not  at  all  material  to  be  considered.  Hex  r.  Meakin 
was  an  indictment  for  stal)bing  with  a  fork,  with  intent  to  miuilcr, 
and  it  was  shown  that  the  prisoner  was  the  worse  for  liquor.  Alder- 
son.  Haron,  instructed  the  jury  that,  with  regard  to  the  iutoiition, 
drunkenness  might  be  adverted  to  according  to  the  nature  of  the  in- 
strument used.  "  If,"  he  said,  "a  man  uses  a  stick,  you  would  not 
Infer  a  malicious  intent  so  strongly  against  him,  if  drunk  when  he 
made  an  intemperate  use  of  it,  as  3-ou  would  if  he  had  used  a  different 
kind  of  weapon  ;  but  where  a  dangerous  instrument  is  used,  which,  if 
used,  must  produce  grievous  bodily  harm,  drunkenness  can  have  no 
effect  upon  the  consideration  of  the  malicious  intent  of  the  party." 
In  Rex  V.  Thomas  (for  maliciously  stabbing),  the  person  stal)bcd  had 
struck  the  prisoner  twice  with  his  fist,  when  the  latter,  being  drunk, 
stabbed  him,  and  the  jury  were  charged  that  drunkenness  might  be 
taken  into  consideration  in  cases  where  what  the  law  deems  sufllcient 
provocation  has  been  given,  because  the  question  in  such  cases  is, 
whether  the  fatal  act  is  to  be  attributed  to  the  passion  of  anger  excited 
b}'  the  previous  provocation  ;  and  that  passion,  it  was  said,  is  more 
easily  excitable  in  a  person  when  in  a  state  of  intoxication  than  when 
he  is  sober.  So,  it  was  added,  where  the  question  is  whether  wonls 
have  been  uttered  with  a  deliberate  purpose,  or  are  merely  low  and 
idle  expressions,  the  drunkenness  of  the  person  uttering  them  is  proper 
to  be  considered.  But  if  there  is  really  a  previous  determination  to 
resent  a  slight  atfront  in  a  barltarous  manner,  the  state  of  drunkenness 
in  which  the  prisoner  was,  ought  not  to  be  regariled,  for  it  would  fur- 
nish no  excuse. 

It  must  generally  hap[)cn,  in  homicides  committed  b}-  drunken  men. 
that  the  condition  of  the  prisoner  would  explain  or  give  character  to 
some  of  his  language,  or  some  part  of  his  conduct;  and  therefore  I 
am  of  opinion  that  it  would  never  be  correct  to  exclude  the  proof 
altogether.  That  it  would  sometimes  be  right  to  advise  the  jury  that 
it  ought  to  have  no  influence  upon  the  case,  is,  I  think,  clear  from 
the  foregoing  authorities.  In  a  case  of  lengthened  premeditation,  of 
lying  in  wait,  or  where  the  death  was  by  poisoning,  or  in  the  case  of 
wanton  killing  without  any  provocation,  such  an  instruction  would 
}  lainly  be  proper. 


268  PEOPLE   V.    ROGERS.  [OHAP.  VII. 

Harris,  J.    No  rule  is  more  familiar  than  that  intoxication  is  never 
an  excuse  for  crime.     There  is  no  judge  who  has  been  engaged  in  the 
administration  of  criminal  law,  wlio  has  not  had  occasion  to  assert  it. 
Even  where  intent  is  a  necessary  ingredient  in  the  crime  charged,  so 
long  as  the  offender  is  capable  of  conceiving  a  design,  he  will  be  pre- 
sumed, in  the  absence  of  proof  to  the  contrary,  to  have  intended  the 
natural  consequences  of  his  own  act.     Thu.s,  if  a  man,  without  provo- 
cation, shoot  another  or  cleave  him  down  with  an  axe,  no  degree  of 
intoxication,  short  of  that  which  shows  that  he  was  at  the  time  utterly 
incapable  of  acting  from  motive,  will  shield  him  from  conviction.     This 
was,  in  substance,  the  doctrine  which  the  jury  received  from  the  court 
in  this  case.     The  defendant  had  struck  a  blow  with  a  deadly  weapon, 
which  had  resulted  in  immediate  death.     To  this  act  the  law,  without 
further  proof,  imputed  guilty  design.     If  the  perpetrator  would  escape 
the  consequences  of  an  act  thus  committed,  it  was  incumbent  on  him 
to  show,  either  that  he  was  incapable  of  entertaining  such  a  purpose, 
or  that  the  act  was  committed  under  provocation.     In  respect  to  the 
latter,  there  was  nothing  said  by  the  court,  nor  any  request  to  charge. 
Had  it  been  contended  that  the  blow  was  struck  in  the  heat  of  passion, 
it  might  then  have  been  proper  to  instruct  the  jury  that,  in  determin- 
ing this  question,  the  intoxication  of  the  defendant  might  well  be  con- 
sidered.    No  such  ground  appears  to  have  been  taken  by  the  counsel 
for  the  defence.     There  was,  indeed,  some  testimony  tending  to  show 
that  the  defendant  had  been  struck  before  he  committed  the  act  for 
which  he  was  tried.     But  the  weight  of  the  testimony  is  clearly  against 
this  theory  of  the  case.     It  was  no  doubt  judicious,  therefore,  for  the 
defendant's  counsel  to  refrain  from  asking  the  court  to  charge  that 
the  intoxication  of  the  defendant  might  be  considered  by  the  jury  in 
determining  whether  the  blow  was  struck  in  the  heat  of  passion,  or 
with  premeditated  design.     Had  such  a  request  been  made,  I  think  it 
would  have  been  the  duty  of  the  court  so  to  charge ;  though  from  the 
state  of  the  testimony,  it  is  not  likely  that  the  result  would  have  been 
favorable  to  the  defendant. 

In  the  case  now  before  us,  there  was  no  attempt  to  show  that  the 
act  of  killing  was  committed  under  the  impulse  of  sudden  passion.  All 
that  the  court  was  requested  to  do  was  to  instruct  the  jury  that  if  they 
were  satisfied  that,  by  reason  of  intoxication,  there  was  no  intention  or 
motive  to  commit  the  crime  of  murder,  they  should  convict  the  defend- 
ant of  manslaughter  only.  In  refusing  so  to  charge,  there  was  no 
error.  If,  by  this  request,  the  counsel  for  the  defendant  meant,  as 
the  request  seems  to  have  been  interpreted  by  the  Supreme  Court,  that 
the  jury  should  be  instructed  to  take  into  consideration  the  intoxica- 
tion of  the  defendant  in  determining  the  intent  with  which  the  homi- 
cide was  committed,  the  proposition  is  not  law.  It  has  never  yet  been 
held  that  the  crime  of  murder  can  be  reduced  to  manslaughter  by 
showing  that  the  perpetrator  was  drunk,  when  the  same  offence,  if 
committed  by  a  sober  man,  would  be  murder.     If,  on  the  other  hand, 


SECT.  II.]  CHOICE  V.   STATE.  2G9 

it  was  iiitciulcd  that  the  court  should  instruct  the  jury  tliat  if,  b}-  reason 
of  intoxication,  the  defendant  was  so  far  deprived  of  his  senses  as  to 
be  incapable  of  entertaining'  a  purpose,  or  acting'  from  design,  the  jury 
were  so  instructed.  Tliis  was  enough,  unless  tlie  counsel  for  the  de- 
fendant desired  to  have  the  jury  decide  whether  the  act  was  not  com- 
mitted in  the  heat  of  passion.  In  that  case,  his  i)roposition  must  have 
Ixjcn  very  differently  framed. 

Judgment  of  the  Supreme  Court  reversed,  and  that  of  the  General 
Sessions  alllrmed. 


CHOICE  V.   STATE. 
Supreme  Colkt  of  Georgia.     1860. 

[Rejwrtfd  31   Georgia,  424.] 

LcMPKiN,  J.*  The  sixth  error  alleged  in  the  motion  for  a  new  trial 
is,  because  the  jndge  failed  to  include  in  his  charge  to  the  jury  the 
law  on  the  material  facts  proven  in  the  evidence  and  insisted  on  in 
the  argument  of  counsel ;  and  especially  in  failing  to  charge  the  jury 
whether  the  prisoner  was  or  was  not  responsible  for  crime,  if  by  rea- 
son of  the  injury  to  iiis  brain  or  othencise  (mark  that  expression  I) he 
was  artlicted  with  the  disease  called  oinomania,  and  by  reason  of  this 
disease  was  irresistibly  impelled,  by  a  will  not  his  own,  to  drink,  and 
after  being  so  impelled  did  drink,  and  thus  became  insane  from 
drink,  and  while  thus  insane  he  committed  homicide.  The  court  also 
erred  in  not  charging  the  jury  that  if  they  believed  the  prisoner  had 
Buffered  by  injury,  or  otherwise  (mark  that  again !),  a  pathological  or 
organic  change  in  the  brain,  which  produced  the  disease  of  oinonumia, 
and  by  this  disease  was  irresistihhj  impelled  to  drink  liquor,  and  from 
the  liquor  thus  drank  became  insane,  and  while  thus  insane  killed 
deceased,  he  was  not  guilty  of  murder. 

Whether  any  one  is  born  with  an  irresistible  desire  to  drink,  or 
whether  such  thirst  may  be  the  result  of  accidental  injury  done  to  the 
brain,  is  a  theory  not  yet  satisfactorily  established.  For  myself,  I 
capitally  doubt  whetlier  it  ever  can  be.  And  if  it  were,  how  far  this 
crazy  desire  for  liquor  would  excuse  from  crime,  it  is  not  for  me  to 
say.  That  this  controlling  thirst  for  liquor  may  be  acquired  by  the 
force  of  habit,  until  it  becomes  a  sort  of  second  nature,  in  common 
language,  I  entertain  no  doul)t.  Whether  even  a  long  course  of  in- 
dulgence will  produce  a  pathological  or  organic  change  in  the  brain,  I 
venture  no  opinion.  Upon  this  proposition,  however,  I  plant  myself 
immovably,  and  from  it  nothing  can  di.slmlge  me  but  an  Act  of  the 
Legislature  ;  namely,  that  neither  moral  nor  legal  resiwnsibility  can  be 
avoided  in  this  way.     This  is  a  new  principle  sought  to  l>e  ingrafted 

*  Part  of  the  opinion  only  is  givea. 


270  STATE   V.    JOHNSON.  [cHAP.  VIL 

upon  criminal  jurisprudence.  It  is  neither  more  nor  less  than  this, 
—  that  a  want  of  will  and  conscience  to  do  right  will  constitute  an 
excuse  for  the  commission  of  crime  ;  and  that,  too,  where  this  deficiency 
in  will  and  conscience  is  the  result  of  a  long  and  persevering  course  of 
wrong-doing.  If  this  doctrine  be  true,  —  I  speak  it  with  all  serious- 
ness, —  the  devil  is  the  most  irresponsible  being  in  the  universe.  For, 
from  his  inveterate  hostility  to  the  Author  of  all  good,  no  other  crea- 
ture has  less  power  than  Satan  to  do  right.  The  burglar  and  the 
pirate  may  indulge  in  robbing  and  murder  until  it  is  as  hard  for  an 
Ethiopian  to  change  his  skin  as  for  them  to  cease  to  do  evil,  but  the 
inability  of  Satan  to  control  his  will,  to  do  right,  is  far  beyond  theirs  ; 
and  yet  our  faith  assures  us  that  the  fate  of  Satan  is  unalterably  and 
eternally  fixed  in  the  prison-house  of  God's  enemies.  The  fact  is, 
responsibility  depends  upon  the  possession  of  will,  —  not  the  power 
over  it.  Nor  does  the  most  desperate  drunkard  lose  the  power  to 
control  his  will,  but  he  loses  the  desire  to  control  it.  No  matter  how 
deep  his  degradation,  the  drunkard  uses  his  will  when  he  takes  his 
cup.  It  is  for  the  pleasure  of  the  relief  of  the  draught,  that  he  takes 
it.  His  intellect,  his  appetite,  and  his  will,  all  work  rationally,  if  not 
wisely,  in  his  guilty  indulgence.  And  were  you  to  exonerate  the  ine- 
briate from  responsibility,  you  would  do  violence  both  to  his  conscious- 
ness and  to  his  conscience  ;  for  he  not  only  feels  the  self-prompted 
use  of  every  rational  power  involved  in  accountability,  but  he  feels 
also  precisely  what  this  new  philosophy  denies,  —  his  solemn  and 
actual  wrong-doing,  in  the  very  act  of  indulgence.  Converse  seriously 
with  the  greatest  drunkard  this  side  of  actual  insanity,  —  just  compose 
him,  so  as  to  reach  his  clear,  constant  experience,  —  and  he  will  confess 
that  he  realizes  the  guilt,  and  therefore  the  responsibility  of  his  con- 
duct. A  creature  made  responsible  by  God  never  loses  his  respon- 
sibility save  by  some  sort  of  insanity.  There  have  always  existed 
amongst  men  a  variety  of  cases  wherein  the  will  of  the  transgressor 
is  universally  admitted  to  have  little  or  no  power  to  dictate  a  return  to 
virtue.  But  mankind  have  never,  in  any  age  of  the  world,  exonerated 
the  party  from  responsibility,  except  where  they  were  considered  to 
have  lost  rectitude  of  intellect  by  direct  mental  alienation.^ 


STATE  V.   JOHNSON. 
Supreme  Court  of  Errors  of  Connecticut.     1873. 

[Reported  40  Connecticut,  136] 

Carpenter,  J.^    The  prisoner  was  indicted  and  on  trial  for  murder 
in  the  first  degree.     As  the  homicide  was  not  perpetrated  by  means  of 

>  See  accord  Fknigan  v.  People,  86  N.  Y.  554.  —  Ed. 
2  Part  of  the  orinion  only  is  given. 


SECT.  II.]  PEOPLE    V.    WAI.KEIL  271 

poisou,  or  lying  in  wait,  or  in  conuuilting  or  attempting  to  eoininit  any 
of  the  crimes  cnnmenitccl  in  the  statute,  lie  could  only  be  convicted  of 
tiie  higher  ofTence  hy  showing  that  it  wan  a  wilful,  deliberate,  and 
premeditated  killing.  A  deliberate  intent  to  take  life  is  au  essential 
element  of  that  offence.  The  existence  of  such  au  intent  must  be 
shown  as  a  fact.  Implied  malice  is  sulllcient  at  conunon  law  to  make 
the  offence  murder,  and  under  our  statute  to  make  it  nuirder  in  the 
second  degree  ;  but  to  constitute  nnn-der  in  the  first  degree,  actual 
malice  must  be  proved.  I'pou  this  (jueslion  the  state  of  the  prisoner's 
mind  is  material.  In  behalf  of  the  defence,  insanity,  into.xication,  or 
any  other  fact  which  tends  to  prove  that  the  prisoner  was  incapable  of 
deliberation,  was  competent  evidence  for  the  jury  to  weigh.  Intoxica- 
tion is  adn)issil)le  in  such  cases,  not  as  an  excuse  for  crime,  not  in 
mitigation  of  punishment,  but  as  tending  to  show  that  the  less  and  not 
tiie  greater  offence  was  in  fact  committed.  I  cite  a  few  only  of  the 
many  authorities  which  sustain  this  position.  Kecnan  v.  The  Com- 
monwealth, 44  Pa.  of) ;  Roberts  v.  The  People,  19  Mich.  401  ;  Pigman 
V.  The  State,  14  Ohio,  aoo  ;  State  r.  Garvey,  11  Minn.  l.'»4  ;  Haile  v. 
The  State,  11  Humph.  154  ;  Shannahau  v.  The  Conimouwealth,  8  Bush 
(Ky.),  463 ;  Ray's  Med.  Jur.  5th  ed.  566.^ 


PEOPLE  V.  WALKER. 
Supreme  Court  of  Michig.vx.     1878. 

[Reported  .39  Michlgitn,  156] 

CooLEY,  J.''  The  defendant  was  convicted  in  the  court  below  for 
the  larceny  of  a  sum  of  money  from  one  Martin.  All  the  evidence  in 
the  case  tended  to  show  that  if  the  defendant  took  the  money  wrong- 
fully, it  was  while  he  was  under  the  iuHuence  of  liquor,  autl  some  of 
it  indicated  that  he  was  very  drunk. 

The  circuit  judge  was  requested  to  charge  the  jury,  that,  "  even  if 
the  jury  should  believe  that  defendant  was  intoxicated  to  such  an 
extent  as  to  make  hiin  unconscious  of  what  he  was  doing  at  the  time 
of  the  commission  of  the  alleged  offence,  it  is  no  excuse  for  him,  and 
they  should  not  take  it  into  consideration.  A  man  who  voluntarily  puts 
himself  in  condition  to  have  no  control  of  his  actions  must  be  held  to 
intend  the  consequences."  This  charge  was  given  in  reliance  upon  the 
general  principle  that  drunkenness  is  uo  excuse  for  crime. 

1  Ace.  Ilopt  V.  People,  101  U.  S.  631;  C.irtwrifjht  v.  State,  8  Lea,  37f^;  Forrell  r. 
Sfnte,  43  Tex.  503;  State  v.  Rohinson,  20  W.  Va.  713. 

The  s.amp  prinriplc  would  seem  to  apply  wliere  it  i.s  desired  to  show  that  b_v  reiwon 
of  intoxication  an  intent  to  kill  was  absolutely  lacking,  and  so  to  reduce  the  degne  of 
a  homicide  to  manslaughter.     Reg.  v.  Doherty,  16  Cox  C.  C.  306.  —  Fi>. 

*  Part  of  the  opiuion  ouly  is  given. 


272  ANONYMOUS.  [CHAP.  VIL 

While  it  is  true  that  drunkenness  cannot  excuse  crime,  it  is  equally 
true  that  when  a  certain  intent  is  a  necessary  element  in  a  crime,  the 
crime  cannot  have  been  committed  when  the  intent  did  not  exist.  In 
larceny  the  crime  does  not  consist  in  the  wrongful  taking  of  the  prop- 
erty, for  that  might  be  a  mere  trespass  ;  but  it  consists  in  the  wrongful 
taking  with  felonious  intent;  and  if  the  defendant,  for  any  reason 
whatever,  indulged  no  such  intent,  the  crime  cannot  have  been  com- 
mitted. This  was  fully  explained  by  Mr.  Justice  Christiancy  in  Roberts 
V.  People,  19  Mich.  401,  and  is  familiar  law.  See  also  Nichols  v. 
State,  8  Ohio  St.  435  ;  Regina  v.  Moore,  3  C.  &  K.  319. 

The  circuit  court  should  be  advised  to  set  aside  the  verdict  and 
grant  a  new  trial. 

The  other  justices  concurred.^ 


SECTION   III. 
Coercion. 


ANONYMOUS. 
Assizes.     1352. 

[Reported  Liber  Assisarum,  137  pi.  40.] 

A  VTOMAN  was  arraigned  for  that  she  had  feloniously  stolen  two 
shillings'  worth  of  bread.  She  said  that  she  did  it  by  command  of  him 
who  was  at  that  time  her  husband.  And  the  justices  out  of  pity  would 
not  accept  her  confession,  but  took  a  jury ;  by  which  it  was  found 
that  she  did  it  by  coercion  of  her  husband,  in  spite  of  herself.  Where- 
fore she  was  acquitted.  And  it  was  said  that  by  command  of  a  husband, 
without  other  coercion,  there  shall  be  no  sort  of  felony,  etc.^ 

1  See  to  the  same  effect  the  following  cases:  People  v.  Blake,  65  Cal.  275  (forgery); 
State  V.  Bell,  29  la.  316  (burglary);  Roberts  v.  People,  19  Mich.  401  (assault  with 
intent  to  kill);  Pigman  v.  State,  14  Ohio,  555  (passing  counterfeit  money).  — Ed. 

2  When  a  wife  commits  a  crime  in  her  husband's  presence,  the  presumption  is  that 
she  acted  by  his  coercion;  and  if  so,  she  is  excused.  Reg.  v.  Price,  8  C.  &  P.  19;  Com. 
V.  Eagan,  103  Mass.  71;  State  v.  Williams,  65  N.  C.  398.  This  presumption  may, 
however,  be  rebutted  by  proof  that  the  wife  did  not  act  by  the  husband's  coercion.  U.  S. 
V.  Terry,  42  F.  R.  317;  Seller  v.  People,  77  N.  Y.  411;  Uhl  v.  Com.,  6  Gratt.  706; 
Miller  v.  State,  25  Wis.  384.  The  land  of  a  wife  who  left  the  country  ^nth  her  hus- 
band was  held  not  liable  to  confiscation  under  the  "Absentee  Act"  in  Martin  v.  Com., 
1  Mass.  387.  —  Ed. 


SECT.  IIL]  M'GROW'THEIJ'S   CASE.  273 


ANONYMOrS. 
Cambridge  Assizes.     1GG4. 

[Heported  Kelymj,  31.] 

It  was  propounded  to  all  the  judges:  If  a  man  and  liis  wife  go 
both  together  to  commit  a  burglary,  and  lx>th  of  them  break  a  house 
iu  the  uight,  and  euter  aud  steal  goods,  wliat  offence  this  was  in  th(! 
wife;  aud  agreed  by  all,  that  it  was  no  felony  iu  the  wife,  for  tiie 
wife  being  together  with  the  husband  iu  the  act,  the  law  8U[)i)0seth 
the  wife  doth  it  by  coercion  of  the  husband.  And  so  it  is  in  all  larce- 
nies ;  but  as  to  murder,  if  husband  and  wife  both  join  in  it,  they  are 
both  e<iually  guilty.  Vid.  2  VI.  III.  ;  F.  Corone,  100  ;  27  Ass.  pi.  40  ;  V. 
C'orone,  TJ'J  ;  Toulton  de  Pace,  12(),  b;  and  the  case  of  the  Earl  of 
Somerset  aud  his  lady,  both  equally  found  guilty  of  the  murder  of  Sir 
Thomas  Overbury,  by  poisoning  him  iu  the  Tower  of  London  [2  How. 
St.  Tr.  951,  3  Co.  Inst.  49]. 


M'GROWTHER'S  CASE. 
Surrey  Special  Assizes.*     1746. 

[Reported  Foster  C  L.  13.] 

Is  the  case  of  Alexander  M'Growther,  there  was  full  evidence 
tou'jhing  his  having  been  in  the  rebellion,  and  his  acting  as  a  lieu- 
tenant in  a  regiment  in  the  rebel  army  called  the  Duke  of  Perth's  regi- 
ment.    The  defence  he  relied  on  was  that  he  was  forced  in. 

Aud  to  that  purpose  he  called  several  witnesses,  who  in  general 
swore  that  on  the  28th  of  August  the  person  called  Duke  of  Perth,  and 
the  Lxjrd  Strathallan,  with  alxjut  twenty  Highlanders,  came  to  the  town 
where  the  prisoner  lived  ;  that  on  the  same  day  three  several  sum- 
monses were  sent  out  by  the  Duke,  requiring  his  tenants  to  moot  him, 
and  to  conduct  him  over  a  moor  in  the  neighborhood,  called  Luiny 
Moor ;  that  upon  the  third  summons  the  prisoner,  who  is  a  tenant  to 
the  Duke,  with  alwut  twelve  of  the  tenants,  appeared  ;  that  then  the 
Duke  proiKjsed  to  them  that  Ihey  siiould  take  arms  and  follow  him 
into  the  rebellion  ;  that  the  prisoner  and  the  rest  refused  to  go  ;  where- 
upon they  were  told  that  they  should  be  forced,  and  cords  were  brought 
by  the  Duke's  party  in  order  to  bind  them  ;  and  that  then  the  prisoner 
and  ten  more  went  off,  surrounded  by  the  Duke's  party. 

These  witnesses  swore  that  the  Duke  of  Perth  threatened  to  burn  the 

»  Coram  Lee,  0.  J.,  Wille.s,  C.  J.,  Wright  ami  Fester,  JJ.,  Reynolds  and  Clive,  RB 
Reported  aUo  18  How.  St.  Tr.  391.  —  Er>. 

16 


274  REGINA   V.   DYKES.  [CHAP.  YIT. 

houses  and  to  drive  off  the  cattle  of  such  of  his  tenants  as  should 
i-efuse  to  follow  him. 

They  all  spake  very  extravagantly  of  the  power  lords  in  Scotland 
exercise  over  their  tenants,  and  of  the  obedience  (even  to  the  joining 
in  rebellion)  which  they  expect  from  them. 

Lord  Chief  Justice  Lee,  in  summing  up,  observed  to  the  jury  that 
there  is  not,  nor  ever  was,  any  tenure  which  obligeth  tenants  to  follow 
their  lords  into  rebellion. 

And  as  to  the  matter  of  force,  he  said  that  the  fear  of  having 
houses  burnt  or  goods  spoiled,  supposing  that  to  have  been  the  case  of 
the  prisoner,  is  no  excuse  in  the  eye  of  the  law  for  joining  and  marching 
with  rebels. 

The  only  force  that  doth  excuse  is  a  force  upon  the  person,  and  pres- 
ent fear  of  death ;  and  this  force  and  fear  must  continue  all  the  time 
the  party  remains  with  the  rebels.  It  is  incumbent  on  every  man,  who 
makes  force  his  defence,  to  shew  an  actual  force,  and  that  he  quitted 
the  service  as  soon  as  he  could ;  agreeably  to  the  rule  laid  down  in 
Oldcastle's  Case,  that  they  joined  2)ro  ti77iore  mortis^  et  recessenmt  quam 
cito  potuerunt. 

He  then  observed  that  the  only  force  the  prisoner  pretends  to  was 
on  the  28th  of  August ;  and  that  he  continued  with  the  rebels  and  bore 
a  commission  in  their  army  till  the  surrender  of  Carlisle,  which  was  on 
or  about  the  30th  of  December. 

The  jury  without  going  from  the  bar  found  him  guilty.  But  he  was 
not  executed. 

N.  B.  All  the  judges  that  were  in  town  were  present,  and  concurred 
in  the  points  of  law. 


REGINA   V.  DYKES. 
Maidstone  Assizes.    1885. 

[Reported  \b  Cox  C  C  771.] 

In  this  case  the  two  prisoners,  who  were  husband  and  wife,  were 
charged  with  highway  robbery  with  violence. 

The  facts  as  proved  in  evidence  clearly  disclosed  the  felony  charged 
in  the  indictment,  but  as  regards  the  female  prisoner  there  was  some 
evidence  to  show  that  in  what  she  had  done,  and  in  the  violence  which 
she  had  used  against  the  prosecutor,  she  was  acting  under  the  compul- 
sion of  her  husband,  and  in  fear  of  violence  from  him. 

H.  F.  Dickens,  for  the  prosecution. 

G.  L.  Denman,  for  the  defence,  submitted,  on  the  authority  of  Reg. 
V.  Torpey,  12  Cox  C.  C.  45,  that  there  was  no  case  to  go  to  the  jury 
as  against  the  wife.  And  upon  the  learned  judge  ruling  that  it  wn?. 
for  the  jury  to  find  whether  upon  the  facts  the  wife  had  acted  under 


SECT.  III.]  COMMON WL.VLiii    C.    D.VLKY.  275 

the  coeiciou  of  her  biisbuiul  or  not,  mUIresscd  tlii;  jury  for  Uic  Jefeuce  ; 
tiud,  while  ailniittiiig  that  the  male  prisoner  must  be  convicted,  urged 
that  the  wife  had  really  acted  uudt-r  the  coercion  of  the  husband. 

The  learned  judge  [Stkchkn,  J.],  in  sumiuing  up,  left  the  following 
questions  to  the  jury  :  — 

1.  Were  the  prisoners  inilividually  guilty  or  not  guilty?  This  ques- 
tion to  be  answered  as  if  they  were  unmarried. 

2.  If  both  are  found  guilty,  then  as  a  matter  of  fact  did  the  wife 
act  under  the  compulsion  of  her  husband? 

The  jury  found  lx)th  prisoners  guilty,  but  also  found  that  the  wife 
had  acted  under  the  compulsion  of  the  husband. 

I'pon  this  finding  counsel  for  the  defence  claimed  a  verdict  of  not 
guilty  in  favor  of  the  wife,  quoting  the  case  already  cited,  and  also 
Keg.  V.  Woodward,  8  C.  &  P.  .')G1. 

After  consideration  the  learned  judge  directed  an  acquittal  to  be 
entered  for  the  wife,  who  was  discharged.* 


COMMONWEALTH   v.  DALEY. 
Supreme  Judicial  Court  of  Massachusetts.    1888. 

[Reported  148  Massachusetts,  11.] 

C.  Allen,  J.^  When  a  married  woman  is  indicted  for  a  crime,  and 
it  is  contended  in  defence  that  she  ouglit  to  be  acquitted  because  she 
acted  under  the  coercion  of  her  husband,  the  (piestion  of  f.act  to  be 
determined  is  whether  she  really  and  in  truth  acted  under  such  coercion, 
or  whether  she  acted  of  her  own  free  will  and  independently  of  any 
coercion  or  control  by  him.  To  aid  in  determining  this  question  of 
fact,  the  law  holds  that  there  is  a  presum{)tion  of  such  coercion  from 
his  presence  at  the  time  of  the  commission  of  the  crime  ;  this  presump- 
tion, however,  is  not  conclusive,  and  it  may  be  rebutted.  And  in  order 
to  raise  this  presumption  it  is  also  established  that  the  husband's  pres- 
ence need  not  be  at  the  very  spot,  or  in  the  same  room,  but  it  is 
sufllcient  if  he  was  near  enough  for  her  to  be  under  his  immediate 
control  or  influence. 

No  exact  rule  applicable  to  all  cases  can  be  laid  down  as  to  what 
degree  of  proximity  will  constitute  such  presence,  because  this  may 
vary  with  the  varying  circumstances  of  particular  cases.     And  where 

»  See  Rex  v.  Buncoinlie,  1  Cox  C.  C.  183;  People  i;.  Wright,  38  Mich.  744. 

"A  wife  miiy  be  iiulicted  together  with  her  hu.sbaiul,  ami  coniiemned  to  the  pillor)' 
with  him  for  keeping  a  bawdy-house;  for  this  i.s  an  offence  as  to  the  government  of  the 
hou.se,  in  wliich  the  wife  ha.s  a  principal  share ;  and  also  such  an  offence  a.s  may  gener- 
ally be  presumed  to  be  managed  by  the  intrigues  of  her  sex."  1  Hawk.  P.  C.  ch.  I, 
8.  12.     See  Reg.  v.  Williams,  10  .Mod.  G3;   State  v.  Bentz,  11  Mo.  27.  —  Ed. 

^  Part  of  llie  opinion  only  is  given. 


276  EEGINA   V.   SMITH.  [CHAP.  VII. 

the  wife  did  not  act  in  the  direct  presence  of  her  husband  or  under  his 

eye,  it  must  usually  be  left  to  the  jury  to  determine  incidentally  whether 
his  presence  was  sufficiently  immediate  or  direct  to  raise  the  presump- 
tion. But  the  ultimate  question,  after  all,  is  whether  she  acted  under 
his  coercion  or  control,  or  of  her  own  free  will  independently  of  any 
coercion  or  control  b}'  him ;  and  this  is  to  be  determined  in  view  of 
the  presumption  arising  from  his  presence,  and  of  the  testimony  or 
circumstances  tending  to  rebut  it,  if  any  such  exist.  Commonwealth 
V.  Burk,  11  Gray,  437;  Commonwealth  v.  Gannon,  97  Mass.  547; 
Commonwealth  v.  Welch,  97  Mass.  593  ;  Commonwealth  v.  Eagan, 
103  Mass.  71  ;  Commonwealth  v.  Munsey,  112  Mass.  287  ;  Common- 
wealth V.  Gormley,  133  Mass.  580 ;  Commonwealth  v.  Flaherty,  140 
Mass.  454 ;  Commonwealth  v.  Hill,  145  Mass.  305,  307.^ 


SECTION   IV. 

Infancy :  Incorporation. 

1  Hawk.  P.  C.  ch.  1,  s.  14.  Neither  a  son  nor  a  servant  are  excused 
the  commission  of  any  crime,  whether  capital  or  not  capital,  by  the 
command  or  coercion  of  the  father  or  master.^ 


REGINA  V.  SMITH. 
Somerset  Assizes.    1845. 

[Reported  1  Cox  C.  C.  260.] 

Indictment  for  maliciously  setting  fire  to  a  hayrick. 

It  appeared  that  the  prisoner  was  a  boy  of  the  age  of  ten  years. 
There  was  no  evidence  of  any  malicious  intention. 

Erle,  J.  (to  the  jury).  AVhere  a  child  is  under  the  age  of  seven 
years,  the  law  presumes  him  to  be  incapable  of  committing  a  crime ; 
after  the  age  of  fourteen,  he  is  presumed  to  be  responsible  for  his  actions 
as  entirely  as  if  he  were  forty ;  but  between  the  ages  of  seven  and  four- 
teen, no  presumption  of  law  arises  at  all,  and  that  which  is  termed  a 
malicious  intent,  —  a  guilty  knowledge  that  he  was  doing  wrong,  — 
must  be  proved  by  the  evidence,  and  cannot  be  presumed  from  the 

1  Where  a  crime  is  committed  by  a  wife  in  the  absence  of  her  husband  there  is  no 
presumption  of  coercion,  though  coercion  in  fact  may  be  shown.  Com.  v.  Tryon,  99 
Mass.  442;  State  v.  Collins,  1  McCord,  355;  State  v.  Potter,  42  Vt.  495.  —  Ed. 

2  See  Com.  v.  Mead,  10  All.  398;  State  v.  Learnard,  41  Vt.  585.  —  Ed. 


SECT.  IV.]         COMMONWEALTH   V.    NEW   BEDFORD   BRIDGE.  277 

mere  commission  of  the  act.  You  arc  to  determine  from  a  review  of 
the  evidence  whether  it  is  satisfactorily  proved  tliat  at  tlie  time  he  lired 
the  rick  ^if  you  shouUl  be  of  oitinion  lie  did  lire  it)  he  had  a  guilty 
knowledge  that  he  was  commitliiig  a  crime.  Not  ijuUtij} 


COMMONWEALTH   v.  PROPRIETORS  OF   NEW  BEDFORD 

BRIDGE. 

SuPREBiE  Judicial  Couut  of  Massachusetts.    1854. 

[Reported  2  Gray,  339.] 

Indictment  for  a  nuisance,  occasioned  by  the  erection  and  mainten- 
ance of  a  bridge  in  and  across  the  Acushnet,  a  navigable  river,  flowing 
between  the  city  of  New  Bedford  and  the  town  of  Fairhaven,  and 
thereby  filling  up  and  obstructing  the  navigation  of  the  river.  The 
indictment  was  found  at  June  term,  1852,  of  the  Court  of  Common 
Pleas. 

At  the  trial  in  that  court,  before  Btixgton,  J.,  the  defendants 
admitted  that  they  had  erected  and  maintained  a  bridge  across  the 
Acushnet  River  ;  that  the  bridge  was  so  far  an  obstruction  to  the  navi- 
gation of  the  river,  that  its  erection  and  maintenance  could  only  be 
justified  under  an  act  of  the  legislature  ;  and  that,  without  such  justifi- 
cation, they  would  be  subject  to  a  prosecution  of  some  kind.  But  they 
contended  that  they  were  not  liable  to  indictment. 

The  defendants  gave  in  evidence  their  act  of  incorporation  (St.  1796, 
c.  IL*),  under  which  they  acted  in  maintaining  their  bridge.- 

The  presiding  judge,  "  being  of  opinion  that  the  several  questions 
of  law  are  so  important  or  doubtful  as  to  require  the  opinion  of  the 
Supreme  Judicial  Court,"  directed  a  verdict  of  guilty,  and  reported 
the  case,  with  the  consent  of  the  defendants,  for  the  consideration  of 
this  court. 

BniKLow,  J.  The  indictment  in  the  present  case  is  for  a  nuisance. 
The  defendants  contend  that  it  cannot  be  maintained  against  them,  on 
the  ground  that  a  corporation,  although  lialile  to  indictment  for  non- 
feasance, or  an  omission  to  perform  a  legal  duty  or  obligation,  ai'e  not 

i  Soe  ace.  Rex  r.  Owen,  4  C.  &  P.  23(5;  Angelo  v.  People,  96  111.  209;  State  v.  Fow- 
ler,  52  la.  103;  State  v.  Adams,  76  Mo.  355;  State  v.  Doherty,  2  Overton,  80. 

Criminal  capacity  in  a  child  between  .seven  and  fourteen  may  be  proved  by  evidence, 
or  may  be  inferre<l  from  the  circumstance.s  of  the  act.  4  Bl.  Com.  23;  Godfrey  v.  State, 
31  Ala.  323;  State  i;.  Toney,  15  S.  C.  409. 

As  to  proof  of  criminal  capacity,  see  Willct  v.  Com.,  13  Bu.sh,  230;  C.irr  v.  State, 
24  Te.x.  App.  562. 

As  to  the  conclusive  presumption  that  a  boy  under  fourteen  cannot  1>e  guilty  of  rape, 
except  as  principal  in  the  second  degree,  .see  Rex  v.  F'ldershaw,  3  C  &  P.  396;  Com.  n 
Oreen,  2  Pick.  380  (w/>m);  Law  v.  Com.,  75  Va.  8S5.  —  F^n. 

■^  Part  of  the  case  bus  been  omitted. 


.^78  COMMONWEALTH   V.   NEW   BEDFORD   BRIDGE.        [CHAP.  VII 

amenable  in  this  form  of  prosecution  for  a  misfeasance,  or  the  doing 
of  any  act  unlawful  in  itself  and  injurious  to  the  rights  of  others. 
There  are  dicta  in  some  of  the  early  cases  which  sanction  this  broad 
doctrine,  and  it  has  been  thence  copied  into  text  writers,  and  adopted 
to  its  full  extent  in  a  few  modern  decisions.  But  if  it  ever  had  any 
foundation,  it  had  its  origin  at  a  time  when  corporations  were  few  in 
number,  and  limited  in  their  powers,  and  in  the  purposes  for  which 
tliey  were  created.  Experience  has  shown  the  necessity  of  essentially 
modifying  it ;  and  the  tendency  of  the  more  recent  cases  in  courts  of 
the  highest  authority  has  been  to  extend  the  application  of  all  legal 
remedies  to  corporations,  and  assimilate  them,  as  far  as  possible,  in  their 
legal  duties  and  responsibilities,  to  individuals.  To  a  certain  extent, 
the  rule  contended  for  is  founded  in  good  sense  and  sound  principle. 
Corporations  cannot  be  indicted  for  offences  which  derive  their  crimi- 
nalit}'  from  evil  intention,  or  which  consist  in  a  violation  of  those  social 
duties  wliich  appertain  to  men  and  subjects.  They  cannot  be  guilty 
of  treason  or  felony,  of  perjury  or  offences  against  the  person.  But 
beyond  this,  there  is  no  good  reason  for  their  exemption  from  the  con- 
sequences of  unlawful  and  wrongful  acts  committed  by  their  agents  in 
pursuance  of  authority  derived  from  them.  Such  a  rule  would,  in 
man}'  cases,  preclude  all  adequate  remedy,  and  render  reparation  for 
an  injury,  committed  by  a  corporation,  impossible ;  because  it  would 
leave  the  only  means  of  redress  to  be  sought  against  irresponsible  ser- 
vants, instead  of  against  those  who  truly  committed  the  wrongful  act 
by  commanding  it  to  be  done.  There  is  no  principle  of  law  which 
would  thus  furnish  immunity  to  a  corporation.  If  they  commit  a  tres- 
pass on  private  property,  or  obstruct  a  way  to  the  special  injury  and 
damage  of  an  individual,  no  one  can  doubt  their  liability  therefor.  In 
like  manner,  and  for  the  same  reason,  if  they  do  similar  acts  to  the 
inconvenience  and  annoyance  of  the  public,  they  are  responsible  in 
the  form  and  mode  appropriate  to  the  prosecution  and  punishment  of 
such  offences.  Angell  &  Ames  on  Corp.  ss.  394-396  ;  Maund  v.  Mon- 
mouthshire Canal,  4  M.  &  G.  452,  and  5  Scott  N.  R.  457 ;  The  Queen 
V.  Birmingham  &  Gloucester  Railway,  3  Q.  B.  223  ;  The  Queen  v. 
Great  North  of  England  Railway,  9  Q.  B.  315,  and  2  Cox  C.  C.  70  ; 
Eastern  Counties  Railway  v.  Broom,  6  Ex.  314;  The  State  v.  Morris 
&  Essex  Railroad,  23  N.  J.  (3  Zab.)  360.  If,  therefore,  the  defend- 
ants have  been  guilty  of  a  luiisance,  by  obstructing  unlawfully  a  navi- 
gable stream,  an  indictment  may  well  be  maintained  against  them.  It 
may  be  added  that  the  distinction  between  a  non-feasance  and  a  mis- 
feasance is  often  one  more  of  form  than  of  substance.  There  are  cases 
where  it  would  be  difficult  to  say  whether  the  offence  consisted  in  the 
doing  of  an  unlawful  act,  or  in  the  doing  of  a  lawful  act  in  an  improper 
manner.  In  the  case  at  bar,  it  would  be  no  great  refinement  to  say 
that  the  defendants  are  indicted  for  not  constructing  their  draws  in  a 
suitable  manner,  and  thereby  obstructing  navigation,  which  would  be 
a  non-feasance,  and   not  for  unlawfully  placing  obstructions  in  the 


SECT,  v.]  LEVETr'S   CASE.  279 

river,  which  would  be  a  misfeasance.  The  dilliculty  in  distinguishing 
the  character  of  these  olTences  strongly  illustrates  the  absurdity  of  the 
doctrine  that  a  coriJoration  are  indictable  for  a  uou-feasance,  but  not 
for  a  misfeasance.     See  U  Q.  B.  326.^ 


SECTION   V. 

Ignorance  or  Mistake. 

1  Hale  P.  C.  42.  Ignorance  of  the  municipal  law  of  the  kingdom, 
or  of  the  penalty  thereby  inflicted  upon  otfenders,  doth  not  excuse  any 
that  is  of  the  age  of  discretion  and  compos  mentis  from  the  penalty  of 
the  breach  of  it;  because  every  person  of  the  age  of  discretion  and 
compos  mentis  is  bound  to  know  the  law,  and  presumed  so  to  do ; 
Jgnorantia  eorum  qucB  quis  scire  tenetur  nan  excuscU. 

But  in  some  cases  ignorantia  facti  doth  excuse,  for  such  an  igno- 
rance many  times  makes  the  act  itself  morally  involuntary  ;  and  in- 
deed many  of  the  cases  of  misfortune  and  casualty  mentioned  in  the 
former  chapter  are  instances  that  fall  in  with  this  of  ignorance  :  I  shall 
add  but  one  or  two  more. 

It  is  known  in  war  that  it  is  the  greatest  offence  for  a  soldier  to  kill, 
or  so  much  as  to  assault  his  general ;  suppose,  then,  the  inferior  oflicer 
sets  his  watch,  or  sentinels,  and  the  general,  to  try  the  vigilance  or 
courage  of  his  sentinels,  comes  upon  them  in  the  night  in  the  posture 
of  an  enemy  (as  some  commanders  have  too  rashly  done),  the  sentinel 
strikes,  or  shoots  him,  taking  him  to  be  an  enemy  ;  his  ignorance  of 
the  person  excuseth  his  offence.'' 


LEVETT'S  CASE, 
Newgate  Sessions.     1638. 

{Reported  Croki  Cc.r.  538.] 

Jones  said  that  it  was  resolved  by  the  Chief  Justice  Bramptox,  him- 
self, and  the  Recorder  of  London,  at  the  last  sessions  at  Newgate,  in 
the  case  of  one  William  Levett,  who  was  indicted  of  the  homicide  of 
a  woman  called  Frances  Freeman,  where  it  was  found  bv  special  ver- 
dict that  the  said  Levett  and  his  wife  being  in  the  night  in  bed  and 

'  As  to  the  criminal  liability  of  meni>KTs  of  a  corporation  who  t*ke  port  in  iU  crimi- 
nal arts,  def  Reg.  i-.  Ry.,  9  Q.  H.  315,  327;  People  v.  England,  27  Hun,  139.  —  En. 
'  Here  follows  a  statement  of  Levett's  Case,  infra.  —  Ed. 


280  REX   V.    BAILEY.  [CHAP.  VII. 

asleep,  one  Martha  Stapleton,  their  servant,  having  procured  the  said 
Frances  Freeman  to  help  her  about  house-business,  about  twelve  of 
the  clock  at  night  going  to  the  doors  to  let  out  the  said  Frances  Free- 
man, conceived  she  heard  thieves  at  the  doors  offering  to  break  them 
open ;  whereupon  she,  in  fear,  ran  to  her  master  and  mistress,  and 
informed  them  she  was  in  doubt  that  thieves  were  breaking  open  the 
house-door.  Upon  that  he  arose  suddenly  and  fetched  a  drawn  rapier. 
And  the  said  Martha  Stapleton,  lest  her  master  and  mistress  should 
see  the  said  Frances  Freeman,  hid  her  in  the  buttery.  And  the  said 
Levett  and  Helen  his  wife  coming  down,  he  with  his  sword  searched 
the  entry  for  the  thieves ;  and  she,  the  said  Helen,  espying  in  the 
buttery  the  said  Frances  Freeman,  whom  she  knew  not,  conceiving  she 
had  been  a  thief,  crying  to  her  husband  in  great  fear,  said  to  him, 
''Here  they  be  that  would  undo  us."  Tliereupon  the  said  William 
Levett,  not  knowing  the  said  Frances  to  be  there  in  the  buttery,  has- 
tily entered  therein  with  his  drawn  rapier,  and  being  in  the  dark  and 
thrusting  with  his  rapier  before  him,  thrust  the  said  Frances  under 
the  left  breast,  giving  to  her  a  mortal  wound,  whereof  she  instantly 
died  ;  and  whether  it  were  manslaughter,  they  prayed  the  discretion  of 
the  court.  And  it  was  resolved  that  it  was  not ;  for  he  did  it  igno- 
rantly  without  intention  of  hurt  to  the  said  Frances  ;  and  it  was  there 
so  resolved.* 


REX  V.   BAILEY. 
Crown  Case  Reserved.     1800. 

[Reported  Russell  ^'  Ryan,  1.] 

The  prisoner  was  tried  before  Lord  Eldon,  at  the  Admiralty  Ses- 
sions, December,  1799,  on  an  indictment  for  wilfully  and  maliciously 
shooting  at  Henry  Truscott.* 

It  was  insisted  that  the  prisoner  could  not  be  found  guilty  of  the 
offence  with  which  he  was  charged,  because  the  Act  of  the  39  Geo.  HI. 
c.  37,  upon  which  (together  with  the  statute  relating  to  maUciously 
shooting,  9  Geo.  I.  c.  22,  "  Black  Act")  the  prisoner  was  indicted  at 
this  Admiralty  Sessions,  and  which  act  of  the  39  Geo.  III.  is  entitled 
"■  An  act  for  amending  certain  defects  in  the  law  respecting  offences 
committed  on  the  high  seas,"  only  received  the  royal  assent  on  the 
10th  of  May,  1799,  and  the  fact  charged  in  the  indictment  happened 
on  the  27th  of  June,  in  the  same  3'ear,  when  the  prisoner  could  not 
know  that  any  such  act  existed  (his  ship,  the  "  Langley,"  being  at 
that  time  upon  the  coast  of  Africa.) 

Lord  Eldon  told  the  jury  that  he  was  of  opinion  that  he  was,  in 

1  See  Regina  t>.  Lynch,  1  Cox  C.  C  361 ;  McGehee  v.  State,  62  Miss.  772.  —  Ed. 
*  Part  of  the  case  is  omitted. 


SKCT.  v.]  REX   V.    HALL.  281 

strict  law,  guilty  within  the  statutes,  taken  together,  if  the  facts  hud 
were  proved,  th(jugh  lie  could  not  then  know  that  the  act  of  the  '.VJ 
Geo.  III.  c.  37  had  passed  ;  and  that  his  ignorance  of  that  fact  could  in 
no  otherwise  atfect  the  case  than  that  it  might  he  the  means  of  recom- 
mending him  to  a  merciful  consideration  elsewhere  should  he  be  found 
guilty. 

On  the  first  day  of  Hilar}'  term,  IHOO,  all  the  Judges  (except  Mr. 
.IrsTiCK  Hi  i.i.Ku)  met  at  L<^>in)  Kknyon's  chamlters,  and  were  of  opinion 
that  it  would  be  proper  to  apply  for  a  pardon,  on  the  ground  that  the 
fact  having  been  committed  so  short  a  time  after  the  Act  39  Geo.  III. 
c.  37  was  passed,  that  the  prisoner  could  not  have  known  of  it.^ 


REX  V.   HALL. 
Gloucester  Assizes.     1828. 

[Reported  3  Carrington  ^-  Payne,  409.) 

Indictment  for  robbing  John  Green,  a  gamekeeper  of  Lord  Ducie, 
of  three  hare  wires  and  a  pheasant.  It  appeared  that  the  prisoner  had 
set  three  wires  in  a  field  belonging  to  Lord  Ducie,  in  one  of  which  this 
pheasant  was  caught,  and  that  Green,  the  gamekeeper,  seeing  this, 
took  up  the  wires  and  pheasant  and  put  them  into  his  pocket ;  and  it 
further  appeared  that  the  prisoner  soon  after  this  came  up  and  said, 
"  Have  you  got  my  wires?  "  The  gamekeeper  replied  that  he  had  and 
a  piieasant  tliat  was  caught  in  one  of  them.  The  prisoner  then  asked 
the  gamekeeper  to  give  the  pheasant  and  wires  up  to  him,  which  the 
gamekeeper  refused ;  whereupon  the  prisoner  lifted  up  a  large  stick 
and  threatened  to  beat  the  gamekeeper's  brains  out  if  he  did  not  giva 
them  up.     The  gamekeeper,  fearing  violence,  did  so. 

Maclean,  for  the  prosecution,  contended  that  by  law  the  prisoner 
could  have  no  property  in  either  the  wires  or  the  pheasant,  and  as  the 
gamekeeper  had  seized  them  for  the  use  of  the  lord  of  the  manor, 
under  the  statute  5  Anne  c.  14,  s.  4,  it  was  a  robbery  to  take  them  from 
him  by  violence. 

Vauoiian,  B.  I  shall  leave  it  to  the  jury  to  say  whether  the  prisoner 
acted  on  an  impression  that  the  wires  and  pheasant  were  his  property; 
for  however  he  might  be  liable  to  penalties  for  having  them  in  his 
possession,  yet  if  the  jtiry  think  that  he  took  them  under  a  bona  pJe 

'  "Although  proclamation  bo  not  made  in  the  county,  every  one  is  liouml  to  tike 
notice  of  that  which  is  done  in  parliament ;  for  as  soon  as  the  parhanient  hath  con- 
cluded anything,  the  law  intends  that  every  person  hath  notice  thereof,  for  the  parlia- 
ment rej)resents  the  body  of  the  whole  realm  ;  :ind  therefore  it  is  not  rcq\iisife  that 
any  proclamation  bo  made,  seeing  the  statute  took  efToct  before."  —  Tiioiipr.,  C.  J.,  in 
Y.  B.  39  EUw.  III.  7  (trauslation  of  Coke,  4  Inst.  2C).     See  Brig  Ann,  1  Gall.  62.  —  Ed 


282  REX  V.   ESOP.  [chap.  VII. 

impression  that  he  was  only  getting  back  the  possession  of  his  own 
property,  there  is  no  animus  furandi^  and  I  am  of  opinion  that  the 
prosecution  must  fail.  Verdict,  Not  guiltyA 


REX  V.   ESOP. 
Central  Criminal  Coltrt.     1836. 

[Reported  7  Carrington  ^  Payne,  456.] 

The  prisoner  was  indicted  for  an  unnatural  offence,  committed  on 
board  of  an  East  India  ship,  lying  at  St.  Katherine's  Docks.  It 
appeared  that  he  was  a  native  of  Bagdad. 

Chambers,  for  the  prisoner.  In  the  country  from  which  the  priso- 
ner comes  it  is  not  considered  an  offence ;  and  a  person  who  comes 
into  this  country  and  does  an  act,  believing  that  it  is  a  perfectly  inno- 
cent one,  cannot  be  convicted  according  to  the  law  of  England.  A 
party  must  know  that  what  he  does  is  a  crime.  This  is  the  principle 
upon  which  infants,  idiots,  and  lunatics  are  held  not  to  be  answerable. 
If  a  person  is  unconscious  that  he  is  doing  a  wrong  act,  or  believes 
that  it  is  a  right  or  innocent  act,  he  is  exonerated.  Where  one  man 
kills  another  under  the  persuasion  that  he  is  doing  a  good  action,  he  is 
not  liable  to  punishment,  for  he  knows  not  the  distinction  between 
right  and  wrong,  and  upon  that  point  is  insane. 

Bosanquet,  J.  I  am  clearly  of  opinion  that  this  is  no  legal  de- 
fence. 

Vaughan,  J.  Where  is  the  evidence  that  it  is  not  a  crime  in  the 
prisoner's  own  country?  But  if  it  is  not  a  crime  there,  that  does 
not  amount  to  a  defence  here.  Numbers  have  been  most  improperly 
executed  if  it  is  a  defence. 

The  prisoner,  after  the  examination  of  some  witnesses  on  his  behalf, 
from  whose  statements  it  appeared  that  the  witnesses  for  the  prosecu- 
tion acted  under  the  influence  of  spite  and  ill  will,  was  found 

Not  guilty} 

'  "  Ignorance  of  the  law  cannot  excuse  any  person;  but  at  the  same  time,  when  the 
question  is  with  what  intent  a  person  takes,  we  cannot  help  looking  into  their  state  of 
mind,  as  if  a  person  take  what  he  believes  to  be  his  own,  it  is  impossible  to  say  that  he 
is  guilty  of  felony."  —  Coleridge,  J.,  in  Reg.  v.  Reed,  C.  &  M.  306.  See  Reg.  v.  Hem* 
mings,  4  F.  &  F.  50;  Com.  v.  Stebbins,  8  Gray,  492.  — Ed. 

1  See  occ.  Barronet's  Case,  1  £.  &  B.  1.  —  Ed. 


BECT.  v.]  REGINA   V.   TOWSE.  283 


REG  IN  A   V.   TOWSE. 

EXETKK    ASSIZKS.        1879. 
[Reported  14  Cot  C.  C.  327.] 

Prisoner  was  indicted  for  having  set  fire  to  some  furze  growing  on 
a  common  at  Culmstock.' 

It  appcjired  from  the  evidence  that  persons  living  near  the  common 
had  occasionally  hurnt  the  furze  to  iuit)rove  the  growth  of  the  grass, 
altliough  the  existence  of  any  right  to  ilo  this  was  denied. 

Hut  the  prisoner  in  this  case  denied  having  set  the  furze  on  fire 
at  all. 

liuUen,  for  the  defence,  contended  that  even  if  it  were  proved  that 
the  prisoner  set  the  furze  on  fire  she  could  not  be  found  guilty  if  it 
appeared  that  she  bo))n  Jida  believed  she  had  a  right  to  do  so,  whether 
the  right  were  a  good  one  or  not. 

Lopes,  J.  If  she  set  fire  to  the  furze  thinking  she  had  a  right  to  do 
80  that  would  not  be  a  criminal  offence.  I  shall  leave  two  questions  to 
the  jury.  1.  Did  she  set  fire  to  the  furze?  2.  If  yes,  did  she  do  it 
wilfully  and  maliciously? 

1  "  Whoaoover  shall  unlawfully  and  maliciously  set  fire  to  any  .  .  .  furze  or  fern, 
wheresoever  the  same  may  be  growing,  shall  be  guilty  of  felony."  24  &  25  Vict.  c.  97, 
*.  16. —£u. 


284  ANONYMOUS.  £CKAP.  VUL 


CHAPTER  VIII. 
INTENT  IN  STATUTORY  OFFENCES. 

ANONYMOUS. 

Western  Circuit.     17-. 

[Reported  Foster  C.  L.  (3d  ed.)  439.] 

A  WIDOW  WOMAN  was  indicted  on  the  statute  9  and  10  W.  III.  c.  41, 
for  having  in  her  custody  divers  pieces  of  canvas  marked  with  his 
Majesty's  mark  in  the  manner  described  in  the  Act,  she  not  being  a 
person  employed  by  the  commissioners  of  the  navy  to  make  the  same 
for  his  Majesty's  use. 

The  canvas  was  produced  at  the  trial  marked  as  charged  in  the 
indictment,  and  was  proved  to  the  satisfaction  of  the  court  and  jury 
to  be  of  that  sort  which  is  commonly  made  for  the  use  of  the  navy 
and  to  have  been  found  in  the  defendant's  custody. 

The  defendant  did  not  attempt  to  show  that  she  was  within  the 
exception  of  the  Act,  as  being  a  person  emplo3'ed  to  make  canvas  for 
the  use  of  the  navy ;  nor  did  she  offer  to  produce  an}-  certificate  from 
any  officer  of  the  Crown  touching  the  occasion  and  reason  of  such 
canvas  coming  into  her  possession. 

Her  defence  was  that  when  there  happened  to  be  in  his  Majesty's 
stores  a  considerable  quantit}'  of  old  sails,  no  longer  fit  for  that  use, 
it  had  been  customary  for  the  persons  intrusted  with  the  stores  to 
make  a  public  sale  of  them  in  lots  larger  or  smaller  as  best  suited  the 
purpose  of  the  buyers ;  and  that  the  canvas  produced  in  evidence, 
which  happened  to  have  been  made  up  long  since,  some  for  table-linen 
and  some  for  sheeting,  had  been  in  common  use  in  the  defendant's 
famil}'  a  considerable  time  before  her  husband's  death,  and  upon  his 
death  came  to  the  defendant,  and  had  been  used  in  the  same  public 
manner  by  her  to  the  time  of  the  prosecution.  This  was  proved  by 
some  of  the  family,  and  by  the  woman  who  had  frequently  washed  the 
linen. 

This  sort  of  evidence  was  strongly  opposed  by  the  counsel  for  the 
Crown,  who  insisted  that,  as  the  Act  allows  of  but  one  excuse,  the 
defendant,  unless  she  can  avail  herself  of  that,  cannot  resort  to  any 
other ;  for  if  the  canvas  was  reall}'  bought  of  the  commissioners  or  of 
persons  acting  under  them,  which  is  the  only  excuse  pointed  out  by 
the  statute,  why  was  no  certificate  of  that  matter  taken  at  the  time 
of  the  purchase,  since  the  fourth  section  of  the  Act  admits  of  that 
excuse,  and  the  second  section  admits  of  no  other  ? 


BECT.  I.]  REGINA   V.   TINKLER.  285 

But  the  judge  [FosTKU,  J.]  was  of  opinion  that,  tliough  the  chiusc 
of  the  statute  wliicli  directs  the  sale  of  these  things  hath  not  i)ointe(I 
out  any  other  way  for  incU-uinifying  the  ])uyer  tlian  the  certificate  ;  and 
though  the  second  section  seems  to  excluile  any  other  excuse  for  tliose 
in  whose  custody  they  sliall  he  found  ;  yet  still  the  circumstances  at- 
tending every  case  which  may  seem  to  fall  within  the  Act  ought  U) 
he  taken  into  consideration  ;  otherwise  a  law  calculated  for  wise  pur- 
poses may,  by  too  rigid  a  construction  of  it,  be  made  a  handmaid  to 
oppression.  There  is  no  room  to  say  that  this  canvas  came  into  the 
possession  of  the  defendant  by  any  act  of  her  own.  It  was  brought 
into  family  use  in  the  lifetime  of  her  husband,  and  it  continued  .so  to 
the  time  of  his  death  ;  and  by  act  of  law  it  came  to  her.  Things  of 
this  kind  have  been  frequently  exposed  to  public  sale  ;  and  thouuh  the 
Act  point-s  cnit  an  expedient  for  the  indemnity  of  the  buyers,  yet  prol>- 
ably  few  buyers,  especially  where  small  (piantities  have  been  i)urchased 
at  one  sale,  have  used  the  caution  suggested  to  them  by  the  Act.  And 
if  the  defendant's  husband  reall}-  bought  this  linen  at  a  public  sale,  but 
neglected  to  take  a  certificate,  or  did  not  preserve  it,  it  would  be  con- 
trary to  natural  justice,  after  this  length  of  time,  to  punish  her  for  his 
neglect.  He  therefore  thought  the  evidence  given  by  the  defendant 
proper  to  be  left  to  the  jury,  and  directed  them  that  if,  upon  the  whole 
of  the  evidence,  they  were  of  opinion  that  the  defendant  came  to  the 
possession  of  the  linen  without  any  fraud  or  misbehavior  on  her  part, 
tbcy  should  acquit  her  ;  and  she  was  acquitted. 


REGINA   V.   TINKLER. 
Norfolk  Ciuclit.     1859. 

[Reporled  1  Foster  ^-  Finlason,  513.] 

The  prisoner  was  indicted,  under  the  9  Geo.  IV.,  c.  31,  s.  20,  for 
unlawfully  taking  one  Sarah  Thompson,  she  being  then  unmarried,  and 
under  the  age  of  sixteen  years,  out  of  the  possession  and  against  the 
will  of  Jane  Barnes,  her  lawful  guardian. 

It  appeared  that  the  prisoner,  who  was  a  widower,  had  married  the 
elder  sister  of  Sarah  Thompson,  and  up  to  the  time  of  his  wife's  death, 
Sarah  Thompson,  who  was  an  orphan,  had  lived  in  the  prisoner's 
house.  On  that  occasion,  Mary  Johnson,  another  married  sister  of 
Sarah  Thompson,  caused  her  to  be  placed  under  the  care  of  Jane 
Barnes. 

No  improper  motive  was  alleged  against  the  prisoner,  he  having 
asserted,  as  his  reason  for  taking  the  child  away,  that  he  had  promist-d 
her  fatlier,  on  his  deathbed,  to  take  care  of  her. 

The  CniKF  Justice  [Cockiukn]  told  the  jury  that  it  was  clear  tI>o 
prisoner  had  no  right  to  act  as  he  had  done  in  talking  the  child  out  of 


286  REGINA   V.   TOLSON.  [CHAP.  VIII. 

Mrs.  Barnes's  custody.  But  inasmuch  as  no  improper  motive  was 
suggested  on  the  part  of  the  prosecution,  it  might  very  well  be  con- 
chided  that  the  prisoner  wished  the  child  to  live  with  him,  and  that 
he  meant  to  discharge  the  promise  which  he  alleged  he  had  made  to 
her  father,  and  that  he  did  not  suppose  he  was  breaking  the  law  when 
he  took  the  child  away.  This  being  a  criminal  prosecution,  if  the  jury 
should  take  this  view  of  the  case,  and  be  of  opinion  that  the  prisoner 
honestly  believed  that  he  had  a  right  to  the  custody  of  the  child,  then 
although  the  prisoner  was  not  legall}'  justified,  he  would  be  entitled  to 
an  acquittal  upon  this  charge.^ 

77ie  jury  found  the  prisoner  not  guilty. 


REGINA  V.  TOLSON. 
Crown  Case  Reserved.     1889. 

{Reported  23  Queen's  Bench  Division,  168.] 

Wills,  J.  In  this  case  the  prisoner  was  convicted  of  bigamy.  She 
married  a  second  time  within  seven  years  of  the  time  when  she  last 
knew  of  her  husband  being  alive,  but  upon  information  of  his  death, 
which  the  jury  found  that  she  upon  reasonable  grounds  believed  to  be 
true.     A  few  months  after  the  second  marriage  he  reappeared. 

The  statute  upon  which  the  indictment  was  framed  is  the  24  &  25 
Vict.  c.  100,  s.  57,  which  is  in  these  words:  "  Whoever,  being  mar- 
ried, shall  marry  any  other  person  during  the  life  of  the  former  husband 
or  wife  shall  be  guilty  of  felony,  punishable  with  penal  servitude  for 
not  more  than  seven  years,  or  imprisonment  with  or  without  hard 
labor  for  not  more  than  two  years,"  with  a  proviso  that  "  nothing  in 
this  Act  shall  extend  to  any  person  marrying  a  second  time  whose 
husband  or  wife  shall  have  been  continually  absent  from  such  person 
for  the  space  of  seven  years  last  past,  and  shall  not  have  been  known 
by  such  person  to  be  living  within  that  time." 

There  is  no  doubt  that  under  the  circumstances  the  prisoner  falls 
within  the  very  words  of  the  statute.  She,  being  married,  married 
another  person  during  the  life  of  her  former  husband,  and,  when  she 
did  so,  he  had  not  been  continually  absent  from  her  for  the  space  of 
seven  years  last  past. 

It  is,  however,  undoubtedly  a  principle  of  English  criminal  law,  that 
ordinarily  speaking  a  crime  is  not  committed  if  the  mind  of  the  person 
doing  an  act  in  question  be  innocent.  "  It  is  a  principle  of  natural 
justice  and  of  our  law,"  says  Lord  Kenyon,  C.  J.,  "that  actus  non 
facit  reum,  nisi  mens  sit  rea.     The  intent  and  act  must  both  concur  to 

1  See  Reg.  v.  Green,  3  F.  &  F.  274 ;  Reg.  v.  Hibbert,  L.  R.  1  C.  C.  184 ;  Reg.  v. 
Prince,  L.  R.  2  C  C.  154  ;  State  v.  Ruhl,  8  la.  447.  —  Ed. 


BKCT.  I.]  KEGINA   V.   TOLSON.  287 

coiKsliliiLu  Uie  crime."  Fowler  r.  ratlgct,  7  T.  R.  50'J,  514.  The 
guilty  intent  is  not  ueccsBarily  that  of  intending  tlie  very  act  or  thing 
done  anil  prohibited  hy  coiuinun  or  statute  law,  Init  it  must  at  least  be 
the  intenliou  to  do  something  wrung.  That  intention  may  belong  to 
one  or  other  of  two  classes.  It  may  be  to  do  a  thing  wrong  in  itself 
and  apart  from  positive  law,  or  it  may  be  to  do  a  thing  merely  prohi- 
bited by  statute  or  by  common  law,  or  \x)l\\  elements  of  Intention  may 
co-exist  with  respect  to  the  same  deed.  There  are  many  things  prohi- 
bited by  no  statute  —  fornication  or  seduction  for  instance  —  which 
nevertheless  no  one  would  hesitate  to  call  wrong  ;  and  the  intention  to 
do  an  act  wrong  in  this  sense  at  the  least  must  as  a  general  rule  exist 
before  the  act  done  can  be  considered  a  crime.  Knowingly  and  inten- 
tionally to  l)reak  a  statute  must,  I  think,  from  tlie  jiiillcial  point  of 
view,  always  be  morally  wrong  in  the  absence  of  special  circumstances 
applicable  to  the  particular  instance  and  excusing  the  breach  of  the 
law,  as,  for  instance,  if  a  municipal  regulation  be  broken  to  save  life 
or  to  put  out  a  fire.  But  to  make  it  morally  right  some  such  special 
matter  of  excuse  must  exist,  inasmuch  as  the  administration  of  jus- 
tice and.  Indeed,  the  foundations  of  civil  society  rest  upon  the  prin- 
ciple that  obedience  to  tlie  law,  whether  it  be  a  law  approved  of  or 
disapproved  of  by  the  individual,  is  the  first  duty  of  a  citizen. 

Although  prima  facie  and  as  a  general  rule  there  must  be  a  mind  at 
fault  before  there  can  be  a  crime,  it  is  not  an  indexible  rule,  and  a 
statute  may  relate  to  such  a  subject-matter  and  may  be  so  framed  as 
to  make  an  act  criminal  whether  there  has  been  any  intention  to  break 
the  law  or  otherwise  to  do  wrong  or  not.  There  is  a  large  l)Otly  of 
municipal  law  in  the  present  day,  which  is  so  conceived,  liy-laws  are 
constantly  made  regulating  the  width  of  thorouglifarcs,  the  height  of 
buildings,  the  thickness  of  walls,  and  a  variety  of  other  matters  neces- 
sary for  the  general  welfare,  health,  or  convenience,  and  such  by-laws 
are  enforced  by  the  sanction  of  penalties,  and  the  breach  of  them  con- 
stitutes an  offence  and  is  a  criminal  matter.  In  such  cases  it  would, 
generally  speaking,  be  no  answer  to  proceedings  for  infringement  of 
the  by-law  that  the  person  committing  it  had  bona  fide  made  an  acci- 
dental miscalculation  or  an  erroneous  measurement.  The  Acts  are 
properly  construed  as  imposing  the  penalty  when  the  act  is  done,  no 
matter  how  innocently,  and  In  such  a  case  the  substance  of  the  en- 
actment is  that  a  man  shall  take  care  that  the  statutory  direction  is 
obeyed,  and  that  if  he  fails  to  do  so  he  does  it  at  his  peril. 

Wluther  an  enactment  is  to  be  construed  in  this  sense  or  with  the 
qualification  ordinarily  imported  into  the  construction  of  criminal  stat- 
utes, that  there  must  be  a  guilty  mind,  must,  I  think,  depend  upon 
the  subject-matter  of  the  enactment,  and  the  various  circumstances 
that  may  make  the  one  construction  or  the  other  reasonable  or  unrea- 
sonable. There  is  no  difference,  for  instance,  in  the  kind  of  language 
used  by  Acts  of  rarliament  which  made  the  unauthorizeil  i>ossossion 
of  Government  stores  a  crime,  and  the  language  used  in  Ijy-laws  which 


288  REGINA.  V.   TOLSON.  [CHAP.  VIII. 

say  that  if  a  man  builds  a  house  or  a  wall  so  as  to  encroach  upon  a 
space  protected  by  the  by-law  from  building  he  shall  be  liable  to  a 
penalty.     Yet  in  Reg.  v.  Sleep,  L.  «fe  C.  44  ;  30  L.  J.  M.  C.  170,  it 
was  held  that  a  person  in  possession  of  Government  stores  with  the 
broad  arrow  could  not  be  convicted  when  there  was  not  sufficient  evi- 
dence to  show  that  he  knew  they  were  so  marked,  while  the  mere 
infringement  of  a  building  by-law  would  entail  liability  to  the  penalty. 
There  is  no  difference  between  the  language  by  which  it  is  said  that  a 
man  shall  sweep  the  snow  from  the  pavement  in  front  of  his  house 
before  a  given  hour  in  the  morning,  and  if  he  fail  to  do  so,  shall  pay 
a  penalty,  and  that  by  which  it  is  said  that  a  man  sending  vitriol  by 
railway  shall  mark  the  nature  of  the  goods  on  the  package  on  pain  of 
forfeiting  a  sum  of  money ;  and  yet  I  suppose  that  in  the  first  case 
the  penalty  would  attach  if  the  thing  were  not  done,  while  in  the  other 
case  it  has  been  held  in  Heme  v.  Garton,  2  E.  &  E.  66,  that  where  the 
sender  had  made  reasonable  inquiry  and  was  tricked  into  the  belief 
that  the  goods  were  of  an  innocent  character,  he  could  not  be  con- 
victed, although  he  had  in  fact  sent  the  vitriol  not  properly  marked. 
There  Is  no  difference  between  the  language  by  which  it  is  enacted 
that  "whosoever  shall  unlawfully  and  wilfully  kill  any  pigeon  under 
such  circumstances  as  shall  not  amount  to  a  larceny  at  common  law  " 
shall  be  liable  to  a  penalty,  and  the  language  by  which  it  is  enacted 
that  "  if  any  person  shall  commit  any  trespass  by  entering  any  land 
in  the  daytime  in  pursuit  of  game  "  he  shall  be  liable  to  a  penalty  ;  and 
yet  in  the  first  case  it  has  been  held  that  his  state  of  mind  is  material: 
Taylor  v.  Newman,  4  B.  &  S.  89  ;  in  the  second  that  it  is  immaterial : 
Watkins  v.  Major,  L.  R.  10  C.  P.  662.     So,  again,  there  is  no  differ- 
ence in  language  between  the  enactments  I  have  referred  to  in  which 
the  absence  of  a  guilty  mind  was  held  to  be  a  defence,  and  that  of  the 
statute  which  says  that  "  any  person  who  shall  receive  two  or  more 
lunatics  "  into  any  unlicensed  house  shall  be  guilty  of  a  misdemeanor, 
under  which  the  contrary  has  been  held :  Reg.  v.  Bishop,  5  Q.  B.  D. 
259.     A  statute  provided  that  any  clerk  to  justices  who  should,  under 
color  and  pretence  of  anything  done  by  the  justice  or  the  clerk,  receive 
a  fee  greater  than  that  provided  for  by  a  certain  table,   should  for 
every  such  offence   forfeit  £20.     It  was  held  that  where  a  clerk  to 
justices  bona  fide  and  reasonably  but  erroneously  believed  that  there 
were  two  sureties  bound  in  a  recognizance  besides  the  principal,  and 
accordingly  took  a  fee  as  for  three  recognizances  when  he  was  only 
entitled  to  charge  for  two,  no  action  would  lie  for  the  penalty.    "  Actus" 
says  Lord  Campbell,  "  non  facit  reum,  nisi  mens  sit  rea.     Here  the 
defendant  very  reasonably  believing  that  there  were  two  sureties  bound, 
beside  the  principal,  has  not,  by  making  a  charge  in  pursuance  of  his 
belief,  incurred  the  forfeiture.     The  language  of  the  statute  is  '  for 
every  such  offence.'     If,  therefore,  the  table  allowed  him  to  charge  for 
three  recognizances  where  there  are  a  principal  and  two  sureties,  he 
has  not  committed  an  offence  under  the  act."     Bowman  v.  Blyth,  7  E. 
&  B.  26,  43. 


SECT.  I.]  REOINA    V.   TOLSON.  289 

If   identical   l:ui^iia<j;('   may   Uuis   he   IfgitimiUely  coufelnied  in  two 
opposite  senses,  and  is  sonietinies  iield  to  imply  that  there  is  and  sorae- 
times  that  lliere  is  not  an  offenei,'  wlu-n  thi'  guilty  mind  is  absent,  it  is 
oljvioiis  that  assistance  must  be  souj^ht  aliunde,  and  that  all  ciieum- 
stances  nnist  he  talien  into  et^nsiiUiation  which  tend  to  show  that  the 
one  construction  or  the  other  is  reasonable,  and  among  such  circum- 
stances it  is  im|)ossible  to  discard  the  consequences.     This  is  a  con- 
sideration entitleil  to  little  weight  if  the  words   be  incapable  of  more 
than   one  construction  ;   but   I   have,   I   tliink,  abiimlantly  shown   that 
there  is  notliing  in  tlie  mere  form  of  words  used  in  the  enactment  now 
under  considt-ration  to  prevent  the  application  of  what  is  certainly  the 
normal  rule  of  construction  in  the  case  of  a  statute  constituting  an 
offence  entailing  severe  and  degrading  punishment.     If  the  words  are 
not  conclusive  in  themselves,  the  reasonableness  or  otherwise  of  the 
construction   contended   for  has  always   been  recognized  as  a  matter 
fairly  to  be  taken  into   account.     In  a  case  in  which  a  woman  was 
iuilicted  under  9  &  10  Wm.  III.,  c.  41,  s.  2,  for  having  in  her  posses- 
sion without  a  certificate  from  the  proper  authority  Government  stores 
marked  in  the  manner  described  in  the  Act,  it  was  argued  that  liy  the 
Act  the  possession  of  the  certificate  was  made  the  sole  excuse,  and 
that  as  she  had  no  certificate  she  must  be  convicted.     Foster,  J.,  said, 
however,  that  though  the  words  of  the  statute  seemed  to  exclude  any 
other  excuse,  yet  the  circumstances  must  be  taken  into  consideration, 
otherwise  a  law  calculated   for  wise  purposes  might  be  made  a  hand- 
maid to  oppression  ;  and  directed  the  jury  that  if  they   thought  the 
defendant  came   into   possession  of  the   stores  without  any  fraud  or 
misbehavior  on   her  part  they  ought  to  acquit  her.     Foster's  Crown 
Law,  3d  ed.  App.  pp.  439,  440.     This  ruling  was  adoi)ted  by  lord 
Kenyon  in  Rex  v.  Ranks,  I  P2sp.  144,  who  considered  it  be^'ond  ques- 
tion tiiat  the  ilefendant  might  excuse  himself  by  showing  that  he  came 
innocently  into  siicli  possession,  and  treated  the  unqualilied  words  of 
the  statute  as  merely  shifting  the  burden  of  proof  and  making  it  neces- 
sary for  the  defendant  to  show  matter  of  excu^;e,  and  to  negative  the 
guilty  mind,  instead  of  its  being  necessary  for  the  crown  to  show  the 
existence  of  the  guilty  mind.     Prima  facie  the  statute  was  satisfied 
when  the  case  was  brought  within  its  terms,  and  it  then  lay  upon  the 
defendant    to    prove  that  the  violation  of   the  law  which  hail  taken 
place  had  been  committed  accidentally  or  innocently  so  far  as  he  was 
concerned.     Suppo.se   a   man   had   taken   up   by  mistake  one  of  two  / 
baskets  exactly  alike  and  of  similar  weigiit,  one  of  which  contained 
innocent  articles  belonging  to  himself  an<l  tlie  other  marked  "  Govern- 
ment Stores,"  and  was  caught  with  the  wrong  basket  in  his  hand.     lie 
would  by  his  own  act  have  brought  himself  within  the  very  words  of 
the  .statute.      Who  would   think   of    convicting    him?     An<l   yet   what 
defence  could  there  be  except  that  his  mind  was  innocent,  anil  that  he 
had  not  intended  to  do  the  thing  forliidden  by  the  statute'     In  Fowler 
V.   Padget.  7  T.   K.  o09,  the  question  was  whether  it  was  an  act  of 

19 


290  REGINA   V    TOLSON.  [CHAP.  YIIl. 

bankruptcy  for  a  mau  to  depart  from  liis  dwelling-house,  whereby  his 
creditors  were  defeated  and  delayed,  although  he  had  no  intention  of 
defeating  and  delaying  them.  The  statute  which  constituted  the  act 
of  bankruptcy  was  1  Jac.  I.  c.  15,  which  makes  it  an  act  of  bankruptcy 
(among  other  things)  for  a  man  to  depart  his  dwelling-house  "  to  the 
intent  or  whereby  liis  creditors  may  be  defeated  and  delayed."  The 
court  of  King's  Bench,  consisting  of  Lord  Kenyon,  C.  J.,  and  Ashurst 
and  Grose,  JJ.,  held  that  there  was  no  act  of  bankruptcy.  "  Bank- 
ruptcy," said  Lord  Kenyon,  "  is  considered  as  a  crime,  and  the  bank- 
rupt in  the  old  laws  is  called  an  offender ;  but,"  he  adds  in  the  passage 
already  cited,  "  it  is  a  principle  of  natural  justice  and  of  our  law  that 
actus  7ion  facit  reum  nisi  jnens  sit  rea;"  and  the  court  went  so  far 
as  to  read  "  and"  in  the  statute  in  place  of  "  or,"  which  is  the  word 
used  in  the  Act,  in  order  to  avoid  the  consequences  which  appeared  to 
them  unjust  and  unreasonable.  In  Rex  v.  Banks,  1  Esp.  144,  above 
cited,  Lord  Kenyon  referred  to  Foster,  J.'s,  ruling  in  this  case  as  that 
of  "  one  of  the  best  Crown  lawyers  that  ever  sat  in  Westminster  Hall." 
These  decisions  of  Foster,  J.,  and  Lord  Kenyon  have  been  repeatedly 
acted  upon.  See  Reg.  v.  Willmett,  3  Cox  C.  C.  281  ;  Reg.  v.  Cohen, 
8  Cox  C.  C.  41  ;  Reg.  v.  Sleep  (in  the  Court  for  C.  C.  R.),  L.  &  C. 
44  ;  30  L.  J.  N.  C.  170;  Reg.  v.  O'Brien,  15  L.  T.  (N.  S.)  419. 

Now  in  the  present  instance  one  consequence  of  holding  that  the 
offence  is  complete  if  the  husband  or  wife  is  de  facto  alive  at  the  time 
of  the  second  marriage,  although  the  defendant  had  at  the  time  of  the 
second  marriage  every  reason  to  believe  the  contrary,  would  be  that 
though  the  evidence  of  death  should  be  sufficient  to  induce  the  Court 
of  Probate  to  grant  probate  of  the  will  or  administration  of  the  goods 
of  the  man  supposed  to  be  dead,  or  to  prevail  with  the  jur}^  upon  an 
action  by  the  heir  to  recover  possession  of  his  real  property,  tlie  wife 
of  the  person  supposed  to  be  dead  who  had  married  six  years  and 
eleven  months  after  the  last  time  she  had  known  him  to  be  alive  would 
be  guilty  of  felony  in  case  he  should  turn  up  twenty  years  afterwards. 
It  would  be  scarcely  less  unreasonable  to  enact  that  those  who  had  in 
the  meantime  distributed  his  personal  estate  should  be  guilty  of  lar- 
ceny. It  seems  to  me  to  be  a  case  to  which  it  would  not  be  improper 
to  apply  the  language  of  Lord  Kenyon  when  dealing  with  a  statute 
which  literally  interpreted  led  to  what  he  considered  an  equally  pre- 
posterous result :  "  I  would  adopt  any  construction  of  the  statute  that 
the  words  will  bear  in  order  to  avoid  such  monstrous  consequences." 
Fowler  v.  Padget,  7  T.  R.  509,  514. 

Again,  the  nature  and  extent  of  the  penalty  attached  to  the  offence 
may  reasonably  be  considered.  There  is  nothing  that  need  shock  any 
mind  in  the  payment  of  a  small  pecuniary  penalty  by  a  person  wlio 
has  unwittingly  done  something  detrimental  to  the  public  interest.  To 
subject  him,  when  what  he  has  done  has  been  nothing  but  what  any 
well-disposed  man  would  have  been  very  likely  to  do  under  the  cir- 
cumstances, to  the  forfeiture  of   all  his  goods  and  chattels,  which 


SKCT.  I.]  REGINA    V.   TOLSON-.  291 

would  luive  been  one  consofUK'nce  of  a  conviction  at  the  iliite  of  the 
Act  of  24  &  25  Vict.,  to  tlie  hjHs  of  civil  riglits,  to  iniprisoninent  with 
haitl  hibor,  or  even  to  piual  servitude,  is  a  very  difTeient  matter  ;  and 
such  a  fate  seems  iiro|»eiIy  reserved  for  tliose  who  iiave  transgressed 
ninrally,  as  well  as  unhitentionally  ih^ne  something  prohibited  by  law. 
I  am  well  aware  that  the  mischiefs  which  may  result  from  bigamous 
marriages,  however  innocently  contracted,  are  great ;  but  I  cannot 
think  that  the  appropriate  way  of  i)reventing  them  is  to  expose  to  the 
danger  of  a  cruel  injustice  persons  who.se  only  error  may  be  that  of 
acting  upon  the  same  evidence  as  has  appeared  perfectly  satisfactory 
to  a  Court  of  Probate,  a  tribunal  empiiatically  dilficult  to  satisfy  hi 
such  matters,  and  certain  only  to  act  upon  what  appears  to  be  the  most 
cogent  evidence  of  death.  It  is,  as  it  seems  to  me,  undesirable  in  the 
highest  degree  without  necessity  to  multiply  instances  in  which  peoi)le 
shall  be  liable  to  conviction  upon  very  grave  charges,  when  the  cir- 
cumstances are  such  that  no  judge  in  the  kingdom  would  think  of 
pronouncing  more  than  a  nominal  sentence. 

It  is  said,  however,  in  respect  of  the  otTeuce  now  under  discussion, 
that  the  proviso  in  24  &  2.)  Vict,  c  100,  s.  o7,  tiiat  "  nothing  in  the  sec- 
tion shall  extend  to  any  person  marrying  a  second  time  whose  husband 
or  wife  shall  have  been  continually  absent  from  such  person  for  seven 
years  last  past,  and  shall  not  have  been  known  by  such  person  to  be 
living  within  that  time,"  points  out  the  sole  excuse  of  which  the  Act 
allows.  I  cannot  see  what  necessity  there  is  for  drawing  any  such 
inference.  It  seems  to  me  that  it  merely  specifies  one  particular  case, 
and  uidicatcs  what  In  that  case  shall  be  sutlicient  to  exempt  the  party, 
without  any  further  imiuiry,  from  criminal  liability  ;  and  I  think  it  is  an 
argument  of  considerable  weigiit  in  this  connection,  that  under  'J  &  10 
AVm.  III.  c.  41,  s.  2,  where  a  similar  conteutiou  was  founded  upon  the 
specification  of  one  particular  circumstance  under  which  the  possession 
of  Government  stores  should  be  justified,  successive  judges  and  courts 
have  refused  to  accede  to  the  reasoning,  and  have  treated  it,  to  use 
the  words  of  Lord  Kenyon,  as  a  matter  that  "  could  not  bear  a  ques- 
tion," that  the  defendant  might  show  in  other  ways  that  his  posses- 
sion was  without  fraud  or  niis])ehavior  on  his  part.  Rex  r.  Hanks, 
1  Esp.  144,  147. 

Upon  the  point  in  question  there  are  conflicting  decisions.*  There 
is  nothing,  therefore,  m  the  state  of  the  authorities  directly  bearing 
upon  the  question  to  prevent  one  from  deciding  it  upon  the  grounds  of 
principle.  It  is  suggested,  however,  that  the  important  decision  of  the 
court  of  fifteen  judges  in  Reg.  v.  Prince,  L.  R.  2  C.  C.  154,  is  an 
authority  in  favor  of  a  conviction  in  this  case.  I  do  not  think  so.  In 
Reg.  V.  Prince  the  prisoner  was  indicted  under  24  &   2.')  \'ict.  c.  10(», 

'  Tlip  leanioil  Juilgf  here  examined  the  following  conllicting  ilecisions:  Kpr.  •• 
Turner,  9  Cox  C.  C.  145;  Reg.  v.  Horton,  U  Vos  C.  C.  670;  Keg.  v.  Gibbons,  12 
Cox  C.  C.  237;  Ilcg.  v.  Bennett,  14  Cox  C.  C.  45;  Keg.  v.  Moor.',  13  Cox  C.  C. 
644.  —  Ed. 


292  REGINA    V.    TOLSON.  [CHAr.  VIII. 

s.  55,  for  "unlawfully  taking  au  unmarried  girl,  then  being  under  the 
age  of  sixteen  years,  out  of  the  possession  and  against  the  will  of  her 
father."  The  jury  found  that  the  prisoner  bona  Jide  believed  upon 
reasonable  grounds  that  she  was  eighteen.  The  court  (dissentiente 
Brett,  J.,)  upheld  the  conviction.  Two  judgments  were  delivered  by 
a  majority  of  the  court,  in  each  of  which  several  judges  concurred, 
whilst  three  of  them,  Dennian,  J.,  Pollock,  B.,  and  Quam,  J.,  concurred 
in  both.  The  first  of  the  two,  being  the  judgment  of  nine  judges, 
upheld  the  conviction  upon  the  ground  that,  looking  to  the  sul)ject- 
matter  of  the  enactment,  to  the  group  of  sections  amongst  which  it  is 
found,  and  to  the  history  of  legislation  on  the  subject,  the  intention 
of  the  legislature  was  that  if  a  man  took  an  unmarried  girl  under  six- 
teen out  of  the  possession  of  her  father  against  his  will,  he  must  take 
bis  chance  of  whether  any  belief  he  might  have  about  her  age  was 
right  or  wrong,  and  if  he  made  a  mistake  upon  tliis  point  so  much 
the  worse  for  him,  —  he  must  bear  tlie  consequences.  The  second 
of  the  two  judgments,  being  that  of  seven  judges,  gives  a  number  of 
other  reasons  for  arriving  at  the  same  conclusion,  some  of  them 
founded  upon  the  poUcy  of  the  legislature  as  illustrated  by  other  asso- 
ciated sections  of  the  same  Act.  This  judgment  contains  an  emphatic 
recognition  of  the  doctrine  of  the  "guilty  mind,"  as  an  element,  in  gen- 
eral, of  a  criminal  act,  and  supports  the  conviction  upon  the  ground 
that  the  defendant,  who  believed  the  girl  to  be  eighteen  and  not  six- 
teen, even  then,  in  taking  her  out  of  the  possession  of  the  father  against 
his  will  was  doing  an  act  wrong  in  itself.  "This  opinion,"  says  the 
judgment,  "  gives  full  scope  to  the  doctrine  of  the  mens  rea."  ^ 

The  case  of  Reg.  v.  Prince,  therefore,  is  a  direct  and  cogent  author- 
ity for  saying  that  the  intention  of  the  legislature  cannot  be  decided 
upon  simple  proliibitory  words,  without  reference  to  other  considera- 
tions. The  considerations  relied  upon  in  that  case  are  wanting  in  the 
present  case,  whilst,  as  it  seems  to  me,  those  wliich  point  to  the  appli- 
cation of  the  principle  underlying  a  vast  area  of  criminal  enactment, 
that  there  can  be  no  crime  without  a  tainted  mind,  preponderate  greatly 
over  any  that  point  to  its  exclusion. 

1  "To  my  mind,  it  is  contrary  to  the  whole  established  law  of  England  (unless  the 
legislation  on  the  subject  has  clearly  enacted  it),  to  say  that  a  person  can  be  guilty  of  a 
crime  in  England  without  a  wrongful  intent,  —  without  an  attempt  to  do  that  which 
the  law  ha.s  forbidden.  I  am  aware  that  in  a  particular  case,  and  under  a  particular 
criminal  statute,  fifteen  judges  to  one  held  that  a  person  whom  the  jury  found  to  have 
no  intent  to  do  what  was  forbidden,  and  whom  the  jury  found  to  have  been  deceived, 
a'ld  to  have  understood  the  facts  to  be  such  that  he  might  with  impunity  have  done  a 
( ertain  thing,  was  by  the  terms  of  that  Act  of  Parliament  guilty  of  a  crime,  and  could 
be  imprisoned.  I  say  still,  as  I  said  then,  that  I  cannot  subscribe  to  the  propriety  of 
that  decision.  I  bow  to  it,  but  I  cannot  subscribe  to  it;  but  the  majority  of  the  judges 
forming  the  court  so  held  because  they  said  that  the  enactment  was  absolutely  clear." 
Brett,  M.  R.,  in  Attorney  General  v.  Bradlaugh,  14  Q.  B.  D.  667,  689. 

"  Actus  non  facit  rcum,  nisi  incns  sit  rea  is  the  foundation  of  all  criminal  justice." 
CocKBCRN,  C  J.,  in  Reg.  v.  Sleep,  8  Cox  C.  P.  472,  477.  —  Ed. 


SECT.  1.]  i;f,(;ixa  v.  tolson.  293 

In  my  opiiiiou,  tin- if  fore,  this  conviction  oii-fht  to  be  quashed.* 
Stei'Iikn,  J.  I  lun  of  opinion  tliut  tlie  conviction  should  ha  quashed. 
My  view  of  tiie  subject  is  ]>ased  upon  a  paiticuhir  application  of  the 
doctrine  usually,  thoujih  I  tiiink  not  liap[)ily,  dcscrilicd  Ity  the  phrase 
"  non  est  reus,  nisi  vttiis  sit  rca."  Though  this  phrase  is  in  common 
use,  I  think  it  most  unfortunate,  and  not  only  likely  to  mislead,  hut 
actually  misleading,  on  the  following  grounds:  It  naturally  suggests 
th;it,  apart  from  all  particular  definitions  of  crimes,  such  a  thing  exists 
as  a  mens  rea,  or  "  guilty  mind,"  which  is  always  expressly  or  by 
implication  involved  in  every  definition.  This  is  obviously  not  the  case, 
for  the  mental  elements  of  different  crimes  differ  widely.  Mens  rea 
means,  in  the  case  of  murder,  malice  aforethought ;  in  the  case  of  theft, 
an  intention  to  steal ;  in  the  case  of  rape,  an  intention  to  have  forcible 
connection  with  a  woman  without  her  consent;  and  in  the  case  of 
receiving  stolen  goods,  knowledge  that  the  goods  were  stolen.  In  some 
cases  it  denotes  mere  inattention.  For  instance,  in  the  case  of  man- 
slaughter by  negligence,  it  may  mean  forgetting  to  notice  a  signal.  It 
appears  confusing  to  call  so  many  dissimilar  states  of  mind  by  one 
name.  It  seems  contradictory  indeed  to  describe  a  mere  absence  of 
mind  as  a '' /»e/(.s  /wf,"  or  "  guilty  mind."  The  expression,  again,  is 
likely  to  anil  often  does  mislead.  To  an  unlegal  mind  it  suggests  that 
by  the  law  of  England  no  act  is  a  crime  which  Is  done  from  laudable 
motives  ;  in  other  words,  that  immorality  is  essential  to  crime.  It  will, 
I  tiiink,  l)e  found  that  much  of  the  discussion  of  the  law  of  lil)el  iu 
Shipley's  Case,  4  Doug.  73  ;  21  St.  Tr.  847,  proceeds  upon  a  more  or 
less  distinct  belief  to  this  effect.  It  is  a  topic  frequently  insisted  upon 
in  reference  to  political  offences,  and  it  was  urged  in  a  recent  notorious 
case  of  abduction,  in  which  it  was  contended  that  motives  said  to  be 
laudable  were  an  excuse  for  the  abduction  of  a  child  from  its  parents. 
Like  most  legal  liatiu  maxims,  the  maxim  on  mens  rea  appears  to  me 
to  be  too  short  and  antithetical  to  be  of  much  practical  value.  It  is, 
indeed,  more  like  the  title  of  a  treatise  than  a  practical  rule.  I  have 
tried  to  ascertain  its  origin,  but  have  not  succeeded  in  doing  so.  It  is 
not  one  of  the  ^^  re'juJn:  juris"  in  the  digests.  The  earliest  case  of  its 
use  which  I  have  found  is  in  the  "  Leges  Ilonrici  Primi,"  v.  28,  in 
which  it  is  said:  "6'*'  f/uis  per  coactionem  abjurare  cogatur  quod  per 
mnltos  annos  quiete  tenuerit  non  in  jurante  set  cogente  perjurinm  erit. 
Reum  non  facit  nisi  mens  rea."  In  Broom's  Maxims  the  earliest 
authority  cited  for  its  use  is  3d  Institute,  ch.  i.  fol.  10.  In  this  place 
it  is  contained  in  a  marginal  note,  which  says  that  when  it  was  found 
that  some  of  Sir  John  Uldcastlc's  adherents  took  part  in  an  insurrection 
*^pro  timore  mortis  et  quod  recesserunt  quam  cito  potuerunt,"  the  judges 
held  that  this  was  to  be  adjudged  no  treason,  because  it  was  for  fear 
of  death.    Coke  ailds  ;  '■'■Et  actus  non  facit  reum  nisi  mens  sit  rea." 

'  Coiicarnng  opinions  of  C.wk  ami  Hawkins,  JJ.,  and  Lord  Colf.uidoe,  C.  J.,  are 
omitted.  CiiAKLK.s,  Day,  A.  L.  S.mitii,  and  Gi:antiia.m,  JJ.,  concurred.  Tart  of  tbs 
opiuion  o(  Stephf.s,  J  ,  is  omitted.  —  Ed. 


294  REGINA   V.   TOLSON.  [CHAP.  VIIL 

This  is  only  Coke's  own  remark,  aud  not  part  of  the  judgment.  Now 
Coke's  scraps  of  Latin  in  this  and  the  following  chapters  are  some- 
times contradictory.  Notwithstanding  the  passage  just  quoted,  he 
says  in  the  margin  of  his  remarks  on  opinions  delivered  in  Parliament 
by  Thyrning  and  others  in  the  21  R.  2  :  ''Jlelius  est  omnia  mala  pati 
(/nam  malo  consentire"  (22-23),  which  would  show  that  Sir  J.  Oldcas- 
tle's  associates  had  a  mens  rea,  or  guilty  mind,  though  they  were 
threatened  with  death,  and  thus  contradicts  the  passage  first  quoted. 

It  is  singular  that  in  eacli  of  these  instances  the  maxim  should  be 
used  in  connection  with  the  law  relating  to  coercion. 

The  principle  involved  appears  to  me,  when  fully  considered,  to 
amount  to  no  more  than  this :  The  full  definition  of  every  crime  con- 
tains, expressly  or  by  implication,  a  proposition  as  to  a  state  of  mind. 
Therefore,  if  the  mental  element  of  any  conduct  alleged  to  be  a  crime 
is  proved  to  have  been  absent  in  any  given  case,  the  crime  so  defined 
is  not  committed  ;  or,  again,  if  a  crime  is  fully  defined,  nothing  amounts 
to  that  crime  which  does  not  satisfy  that  definition.  Crimes  are  in  the 
present  day  much  more  accurately  defined  by  statute  or  otherwise  than 
they  formerly  were.  The  mental  element  of  most  crimes  is  marked 
by  one  of  the  words  "maliciously,"  "fraudulently,"  "negligently,"  or 
"  knowingly,"  but  it  is  the  general  — I  might,  I  think,  say,  the  inva- 
riable —  practice  of  the  legislature  to  leave  unexpressed  some  of  tlie 
mental  elements  of  crime.  In  all  cases  wliatever,  competent  age, 
sanity,  and  some  degree  of  freedom  from  some  kinds  of  coercion  are 
assumed  to  be  essential  to  criminality,  but  I  do  not  believe  they  are 
ever  introduced  into  any  statute  by  which  any  particular  crime  is 
defined. 

The  meanings  of  the  words  "malice,"  "negligence,"  and  "fraud," 
in  relation  to  particular  crimes  has  been  ascertained  by  numerous  cases. 
Malice  means  one  thing  in  relation  to  murder,  another  in  relation  to 
the  Malicious  Mischief  Act,  aud  a  third  in  relation  to  libel,  and  so  of 
fraud  and  negligence. 

With  regard  to  knowledge  of  fact,  the  law,  perhaps,  is  not  quite  so 
clear,  but  it  may,  I  think,  be  maintained  that  in  every  case  knowledge 
of  fact  is  to  some  extent  an  element  of  criminality  as  much  as  compe- 
tent age  and  sanity.  To  take  an  extreme  illustration,  can  any  one 
doubt  that  a  man  who,  though  he  might  be  perfectly  sane,  committed 
what  would  otherwise  be  a  crime  in  a  state  of  somnambulism,  would 
be  entitled  to  be  acquitted?  And  why  is  this?  .Simply  because  he 
would  not  know  what  he  was  doing.  A  multitude  of  illustrations  of 
the  same  sort  might  be  given.  I  will  mention  one  or  two  glaring  ones. 
Levet's  Case,  1  Ilale,  474,  decides  that  a  man  who,  making  a  thrust 
with  a  sword  at  a  place  where,  upon  reasonable  grounds,  he  supposed 
a  burglar  to  be,  killed  a  person  who  was  not  a  burglar,  was  held  not 
to  be  a  felon,  though  he  might  be  (it  was  not  decided  that  he  was) 
guilty  of  killing  per  infortuninm,  or  possibly,  -se  defendemlo,  which 
then'involved  certain  forfeitures.     In  other  words,  he  was  in  the  same 


SECT.  I.]  REGINA   V.    TOLSOX.  295 

sitiiHlioii  as  far  as  rejiarded  the  honiicide  us  if  lie  IkhI  killt  ■!  a  burj^lar. 
In  tlu'  cU'cision  of  the  jiicli^is  in  MrNajiiiteus  Case,  10  C'l.  «fc  V.  200, 
it  is  stated  that  if,  under  an  iiisaiu'  dehisioii,  oiu-  man  kille<l  another, 
and  if  the  ilehision  wan  such  that  it  wouUl,  if  true,  justify  or  excuse 
tljc  killing,  the  honiieide  would  be  justified  or  excused.  This  could 
hardly  be  if  the  same  were  not  law  as  to  a  sane  mistake.  A  ftuua  jhle 
claim  of  rij^ht  excuses  larceny,  and  many  of  the  olTeuces  against  tlie 
jNIalicious  Misc-liief  Act.  Apart,  indeed,  from  the  present  case,  1  think 
it  may  be  laid  down  its  a  general  rule  tiiat  an  alleged  otFender  is  deemed 
to  have  acted  under  that  state  of  facts  which  he  in  good  faith  and  on 
reasonable  grounils  believed  to  exist  wlien  he  did  tlie  act  alleged  to  be 
an  oflence. 

1  am  unable  to  suggest  any  real  exce[)tion  to  this  ruK',  nor  has  one 
ever  been  suggested  to  me.  A  very  learned  person  suggested  to  me 
the  following  case  :  A  constable,  reasonably  believing  a  man  to  have 
committed  murder,  is  justified  in  killing  him  to  prevent  his  escape,  but 
if  he  iiad  not  l)een  a  constaiile  he  would  not  have  been  so  justified,  but 
would  have  been  guilty  of  manslaughter.  This  is  quite  true,  but  the 
mistake  in  the  second  case  would  be  not  only  a  mistake  of  fact,  but  a 
mistake  of  law  on  the  part  of  the  homicide  in  supposing  that  he,  a 
private  person,  was  justified  iu  using  as  much  violence  as  a  public  offi- 
cer, whose  duty  is  to  arrest,  if  possible,  a  person  reasonaljly  susijected 
of  murder.  The  supposed  homicide  would  be  in  the  same  position  as 
if  his  mistake  of  fact  had  been  true ;  that  is,  he  would  be  guilty,  not 
of  murder,  but  of  manslaughter.  I  think,  therefore,  that  the  cases 
reserved  fall  under  the  general  rule  as  to  mistakes  of  fact,  and  that 
the  conviction  ought  to  be  quashed. 

I  will  now  i)roceed  to  deal  with  the  arguments  which  are  supposed 
to  lead  to  the  opposite  result. 

It  is  said,  first,  that  the  words  of  21  &  25  Vict,  c  100,  s.  AT,  are 
absolute,  and  that  the  exceptions  which  that  section  contains  are  the 
only  ones  whicii  are  intended  to  be  admitted  ;  and  this,  it  is  said,  is 
confirmed  by  the  express  proviso  in  the  section, —  an  indication  which 
is  thought  to  negative  any  tacit  exception.  It  is  also  supposed  that 
the  case  of  Keg.  v.  Prince,  L.  R.  2  C.  C.  1.01,  decided  on  s.  .5.'),  con- 
firms this  view.  I  will  begin  by  saying  how  far  I  agree  with  these 
views.  First,  I  agree  that  the  case  turns  exclusively  upon  the  con- 
struction of  a.  57  of  21  &  25  Vict.  c.  100.  Much  was  said  to  us  in 
argument  on  the  old  statute,  1  Jac  I.  c.  11.  I  cannot  see  what  this 
has  to  do  with  the  matter.  Of  course,  it  would  be  competent  to  the 
legislature  to  define  a  crime  in  such  a  way  as  to  make  the  existence  of 
any  state  of  mind  immaterial.  The  question  is  solely  whether  it  lias 
actually  done  so  in  this  case. 

In  the  fh-st  place  I  will  observe  uiwn  the  absolute  character  of  the 
section.  It  appears  to  me  to  resemble  most  of  the  enactments  con- 
tained in  the  Consolidation  Acts  of  ISGl,  in  passing  over  the  general 
mental  elements  of  crime  which  are  presupposed  in  every  case.    Age, 


296  KEGIXA   V.    TOLSOX.  [cHAP.  Till. 

sanity,  and  more  or  less  freedom  from  compulsion,  are  always  pre- 
sumed, and  I  think  it  would  be  impossible  to  quote  any  statute  which 
in  any  case  specifies  these  elements  of  criminality  in  the  definition  of 
any  crime.  It  will  be  found  that  either  by  using  the  words  "wilfully 
and  maliciously,"  or  by  specifying  some  special  intent  as  an  element 
of  particular  crimes,  knowledge  of  fact  is  implicitly  made  part  of  the 
statutory  definition  of  most  modern  definitions  of  crimes  ;  but  there  are 
some  cases  in  which  this  cannot  be  said.  Such  are :  s.  55,  on  which 
Reg.  c.  Prince,  L.  E.  2  C.  C.  154,  was  decided ;  s.  56,  which  punishes 
the  stealing  of  "any  child  under  the  age  of  fourteen  years  ;"  s.  49,  as 
to  procuring  the  defilement  of  any  "  woman  or  girl  under  the  age  of 
twenty-one,"  —  in  each  of  which  the  same  question  might  arise  as  in 
Eeg.  6".  Prince,  L.  R.  2  C.  C.  154  ;  to  these  I  may  add  some  of  the  pro- 
visions of  the  Criminal  Law  Amendment  Act  of  1885.  Reasonable 
belief  that  a  girl  is  sixteen  or  upAvards  is  a  defence  to  the  charge  of 
an  offence  under  ss.  5,  G,  and  7,  but  this  is  not  provided  for  as  to  an 
offence  against  s.  4,  which  is  meant  to  protect  girls  under  thirteen. 

It  seems  to  me  that  as  to  the  construction  of  all  these  sections  the 
case  of  Reg.  v.  Prince  is  a  direct  authoritj'.  It  was  the  case  of  a  man 
who  abducted  a  girl  under  sixteen,  believing  on  good  grounds  that 
she  was  above  that  age.  Lord  Esher,  then  Brett,  J.,  was  against 
the  conviction.  His  judgment  establishes  at  much  length,  and,  as  it 
appears  to  me,  unanswerably,  the  principle  above  explained,  which  he 
states  as  follows  :  "That  a  mistake  of  facts  on  reasonable  grounds,  to 
the  extent  that,  if  the  facts  were  as  believed,  the  acts  of  the  prisoner 
would  make  him  guilty  of  no  offence  at  all,  is  an  excuse,  and  that 
such  an  excuse  is  implied  in  every  criminal  charge  and  every  criminal 
enactment  in  England." 

Lord  Blackburn,  with  whom  nine  other  judges  agreed,  and  Lord 
Bramwell,  with  wliom  seven  others  agreed,  do  not  appear  to  me  to 
have  dissented  from  this  principle,  speaking  generally  ;  but  they  held 
that  it  did  not  apply  fully  to  each  part  of  every  section  to  which  I  have 
referred.  Some  of  the  prohibited  acts  they  thought  the  legislature 
intended  to  be  done  at  the  peril  of  the  person  who  did  them,  but  not 
all. 

The  judgment  delivered  by  Lord  Blackburn  proceeds  upon  the  prin- 
ciple that  the  intention  of  the  legislature  in  s.  55  was  "to  punish  the 
abduction  unless  the  girl  was  of  such  an  age  as  to  make  her  consent 
an  excuse." 

Lord  Bramwell's  judgment  proceeds  upon  this  principle  :  "The  legis- 
lature has  enacted  that  if  any  one  does  this  wrong  act  he  does  it  at 
the  risk  of  her  turning  out  to  be  under  sixteen.  This  opinion  gives 
full  scope  to  the  doctrine  of  the  mens  rea.  If  the  taker  believed  he 
had  her  father's  consent,  though  wrongly,  he  would  have  no  mens  rea; 
so  if  he  did  not  know  she  was  in  any  one's  possession  nor  in  the  care 
or  charge  of  any  one.  In  those  cases  he  would  not  know  he  was  doing 
the  act  forbidden  by  the  statute." 


gECT.  I.]  REGINA   V.   TOLSON.  207 

All  the  judges,  tlieiefore,  in  Keg.  '■•  Prince  agreed  on  tlie  gencrnl 
principle,  though  they  all,  except  Lord  Esher,  considered  that  the 
ohject  of  the  legislature  lieing  to  prevent  a  scaiuhilous  and  wicked 
invasion  of  parental  rights  (whether  it  was  to  be  regarded  as  illegal 
apart  fioni  the  statute  or  not)  it  was  to  be  supposed  that  they  intended 
that  the  wrong-doer  should  act  at  his  i)eril. 

As  another  illustration  of  the  same  principle,  I  may  refer  to  Keg,  v. 
Bishop,  .'>  Q.  \\.  D.  250.  The  defendant  in  that  case  was  tried  before 
nie  for  receiving  more  than  two  lunatics  into  a  house  not  duly  licensed, 
upon  an  indictment  on  8  and  1)  Vict.  c.  100,  s.  44.  It  was  pro\'cd  that 
the  defendant  did  receive  more  than  two  persons,  whom  the  jury  found 
to  be  lunatics,  into  her  house,  believing  honestly,  and  on  reasonable 
grounds,  that  they  were  not  lunatics.  I  held  that  this  was  immaterial, 
having  regard  to  the  scope  of  the  Act,  and  the  oliject  for  which  it  was 
apparently  passed,  and  this  court  upheld  that  ruling.' 

The  application  of  this  to  the  present  case  appears  to  me  to  be  as 
follows :  The  general  principle  is  clearly  in  favor  of  the  prisoner,  but 
how  does  the  intention  of  the  legislature  appear  to  have  been  against 
her?  It  could  not  be  the  oV)ject  of  parliament  to  treat  the  marriage  of 
widows  as  an  act  to  be  if  possible  prevented  as  presumaltly  immoral. 
The  conduct  of  the  woman  convicted  was  not  in  the  smallest  degree 
immoral ;  it  was  perfectly  natural  and  legitimate.  Assuming  the  facts 
to  be  as  she  supposed,  the  infliction  of  more  than  a  nominal  punishment 
on  her  would  have  been  a  scandal.  Why,  then,  should  the  legislature 
be  held  to  have  wished  to  subject  her  to  punishment  at  all? 

If  such  a  punishment  is  legal,  the  following  among  many  other 
cases  might  occur:  A  number  of  men  in  a  mine  are  killed,  and  their 
bodies  are  disfigured  and  mutilated,  by  an  explosion.  One  of  the  sur- 
vivors secretly  absconds,  and  it  is  supposed  that  one  of  the  disfigured 
bodies  is  his.  His  wife  sees  his  supposed  remains  buried  ;  she  marries 
again.  I  cannot  believe  that  it  can  have  been  the  intention  of  the  legis- 
lature to  m.ake  such  a  woman  a  criminal ;  the  contracting  of  an  invalid 
marriage  is  quite  misfortune  enough.  It  appears  to  me  that  every 
argument  which  showctl,  in  the  opinion  of  tlie  judges  in  Keg.  v.  Prince, 
L.  R.  2  C.  C.  1 ')4,  that  the  legislature  meant  seihicers  and  abductors  to 
act  at  their  peril,  shows  that  the  legislature  did  not  mean  to  hamper 
what  is  not  only  intended,  but  naturally  and  reasonably  supposed  by 
the  parties  to  be  a  valid  and  honorable  marriage,  with  a  lial)ility  to 
seven  years'  penal  servitude. 

It  is  argued  that  the  proviso  that  a  re-marriage  after  seven  years' 
separation  shall  not  be  punishable  operates  as  a  tacit  exclusion  of  all 
other  exceptions  to  the  penal  part  of  the  section.  It  appears  to  me 
that  it  only  supplies  a  rule  of  evidence  which  is  useful  in  many  cases 

1  "I  am  not  aware  of  any  other  way  in  which  it  is  possible  to  determine  whether 
the  word  '  knowingly '  is  or  is  not  to  he  implied  in  the  definition  of  a  crime  in  which  it 
is  not  expressed."    2  Stephen  Hist.  Cr.  L.  117. 


298  REGINA   V.   TOLSON.  [CHAP.  VIIL 

in  the  absence  of  explicit  proof  of  death.  But  it  seems  Id  me  to  show, 
not  that  belief  in  the  death  of  one  married  person  excuses  the  ruarriage 
of  the  other  onk  after  seven  j-ears'  separation,  but  that  mere  separation 
for  that  period  has  the  etfect  which  reasonable  belief  of  death  caused 
b}'  other  evidence  would  have  at  any  time.  It  would  to  my  mind  be 
monstrous  to  sa}'  that  seven  years'  separation  should  have  a  greater 
eflect  in  excusing  a  bigamous  marriage  than  positive  evidence  of  death, 
sufficient  for  the  purpose  of  recovering  a  policy  of  assurance  or  obtain- 
ing probate  of  a  will,  would  have,  as  in  the  case  I  have  put,  or  in  others 
which  might  be  even  stronger. 

Manisty,  J.     I  am  of  opinion  that  the  conviction  should  be  affirmed. 

The  question  is  whether  if  a  married  woman  marries  another  man 
during  the  life  of  her  former  husband,  and  within  seven  years  of  his 
leaving  her,  she  is  guilt3'  of  felony,  the  jury  having  found  as  a  fact  that 
she  had  reason  to  believe,  and  did  honestly  believe,  that  her  former 
husband  was  dead. 

The  57th  section  of  the  24  &  25  Vict.  c.  100  is  as  express  and  as 
free  from  ambiguity  as  words  can  make  it.  The  statute  says  :  "  Who- 
soever being  married  shall  many  any  other  person  during  the  life  of 
the  former  husband  or  wife  .  .  .  shall  be  guilty  of  felony,  and  being 
convicted  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  any  term  not  exceeding  seven  years,  and  not  less 
than  three  j^ears,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  hard  labor."  The  statute  does  not  even  say  if 
the  accused  shall  feloniously  or  unlawfully  or  knowingly  commit  the 
act  he  or  she  shall  be  guilt}'  of  felon}-,  but  the  enactment  is  couched  in 
the  clearest  language  that  could  be  used  to  prohibit  the  act,  and  to 
make  it  a  felony  if  the  act  is  committed. 

If  any  doubt  could  be  entertained  on  the  point,  it  seems  to  me  the 
proviso  which  follows  the  enactment  ought  to  remove  it.  The  proviso 
is,  that  "Nothing  in  the  57th  section  of  the  Act  shall  extend  to  any 
person  marrying  a  second  time  whose  husband  or  wife  shall  have  been 
continuall}'  absent  from  such  person  for  the  space  of  seven  years  then 
last  past,  and  shall  not  have  been  known  by  such  person  to  be  living 
within  that  time." 

Such  being  the  plain  language  of  the  Act,  it  is,  in  my  opinion,  the 
imperative  duty  of  the  court  to  give  effect  to  it,  and  to  leave  it  to  the 
legislature  to  alter  the  law  if  it  thinks  it  ought  to  be  altered. 

Probably  if  the  law  was  altered  some  provision  would  be  made  in 
favor  of  children  of  the  second  marriage.  If  the  second  marriage  is  to 
be  deemed  to  be  legal  for  one  purpose,  surely  it  ought  to  be  deemed 
legal  as  to  the  children  who  are  the  offspring  of  it.  If  it  be  within  the 
province  of  the  court  to  consider  the  reasons  which  induced  the  legis- 
lature to  pass  the  Act  as  it  is,  it  seems  to  me  one  principal  reason  is 
on  the  surface,  nameh',  the  consequence  of  a  married  person  marrying 
again  in  the  lifetime  of  his  or  her  former  wife  or  husband,  in  which 
case  it  might,  and  in  many  cases  would  be,  that  several  children  of  the 


BECT.  I.]  REGIKA   V.   TOI.SON.  299 

secoiul  uKiiriagi'  woukl  hv  horn,  iiinl  all  wouM  he  hastanls.  The  pro- 
viso is  evidently  loiuuled  upon  the  iissuniption  that  after  the  lapse  of 
seven  years,  and  the  former  hiishand  or  wile  not  Ixing  heard  of,  it  ninv 
reusonahly  be  inferred  that  he  or  she  is  dead,  aiul  thus  the  inisehiefof 
a  second  marriage  in  the  lifetime  of  the  former  husband  or  wife  is  to  a 
great  extent,  if  not  altogether,  avoided. 

It  is  to  be  borne  in  mind  that  bigamy  never  was  a  crime  at  common 
law.  It  has  been  the  subject  of  several  Acts  of  Parliament,  and  is  now 
governed  by  24  &  2")  Vict.  c.  100,  s.  57. 

No  doubt  in  construing  a  statute  the  intention  of  the  legislature  is 
what  the  court  has  to  ascertain  ;  but  the  intention  must  be  collected 
from  the  language  used  ;  and  where  that  language  is  plain  and  explicit, 
ar.d  free  from  all  ambiguity,  as  it  is  in  the  present  case,  I  have  always 
understood  that  it  is  the  imperative  iluty  of  judges  to  give  effect  to  it. 

The  cases  of  insanity,  etc.,  on  which  reliance  is  placed  stand  on  a 
totally  ditlerent  principle,  namely,  that  of  an  absence  of  »^e;<^•.  Igno- 
rance of  the  law  is  no  excuse  for  the  violation  of  it;  and  if  a  person 
choose  to  run  the  risk  of  committing  a  felony,  he  or  she  must  take  the 
consequences  if  it  turn  out  that  a  felony  has  been  committed. 

Great  stress  is  laid  by  those  who  hoM  that  the  conviction  should  be 
quashed  upon  the  circumstance  that  the  crime  of  bigamy  is  by  the 
statute  declared  to  he  a  felony,  and  punishable  with  penal  servitude 
or  miprisonment,  with  or  without  hard  labor,  for  any  term  not  exceed- 
ing two  years.  If  the  crime  had  been  declared  to  be  a  misdemeanor 
punishable  with  Gne  or  imprisonment,  surely  the  construction  of  the 
statute  would  have  been,  or  ought  to  have  been,  the  same.  It  may 
well  be  that  the  legislature  declared  it  to  be  a  felony  to  deter  married 
persons  from  running  the  risk  of  committing  the  crime  of  bigamy,  and 
in  order  that  a  severe  punishment  might  he  inllicted  in  cases  where 
there  were  no  mitigating  circumstances.  No  doubt  circumstances  may 
and  do  alfect  the  sentence,  even  to  the  extent  of  the  punishment  being 
nominal,  as  it  was  in  the  present  case  ;  but  that  is  a  very  different  thing 
from  disregarding  and  contravening  the  plain  words  of  the  Act  of 
Parliament. 

The  case  is  put  by  some  of  my  learned  brothers  of  a  married  man 
leaving  his  wife  and  going  into  a  foreign  country  intending  to  settle 
there,  and,  it  may  be,  afterwards  to  send  for  his  wife  and  children,  and 
the  ship  in  which  he  goes  is  lost  in  a  storm,  with,  as  is  supposed,  all  on 
board  ;  and  after  the  lapse  of  say  a  year,  and  no  tidings  received  of  any 
one  having  been  saved,  the  underwriters  pay  the  insurance  on  the  ship, 
and  the  supposed  widow  gets  probate  of  her  husband's  will,  and  mar- 
ries and  has  children,  and  after  the  lap.se  of  several  3-ears  the  husband 
appears,  it  may  he  a  few  days  l)efore  seven  years  have  expired  ;  and 
the  question  is  asked,  would  it  not  be  shocking  that  in  such  :i  ca.se  the 
wife  could  be  found  guilty  of  bigamy? 

My  answer  is,  thai  the  .Act  of  Parliament  says  in  clear  and  express 
words,  for  very  good  reasons,  as  I  have  already  pointed  out,  that  she 


300  KEGINA  V.   TOLSON.  [CHAP.  VIII. 

is  guilty  of  bigamy.  The  only  shocking  fact  would  be  that  some  one, 
fo°sorao  purpose  of  his  own,  had  instituted  the  prosecution.  I  need 
not  say  that  no  public  prosecutor  would  ever  think  of  doing  so,  and  the 
judge  before  whom  the  case  came  on  for  trial  would,  as  my  brother 
Stephen  did  in  the  present  case,  pass  a  nominal  sentence  of  a  day's 
imprisonment  (which  in  effect  is  immediate  discharge),  accompanied, 
if  I  were  the  judge,  with  a  disallowance  of  the  costs  of  the  prosecution. 
It  may  be  said,  but  the  woman  is  put  to  some  trouble  and  expense  in 
appearing  before  the  magistrate  (who  would,  of  course,  take  nominal 
bail)  and  in  appearing  to  take  her  trial.  Be  it  so,  but  such  a  case 
would  be  very  rare  indeed.  On  the  other  hand,  see  what  a  door  would 
be  opened  to  collusion  and  mischief  if,  in  the  vast  number  of  cases 
where  men  in  humble  life  leave  their  wives  and  go  abroad,  it  would  be 
a  good  defence  for  a  woman  to  say  and  give  proof,  which  the  jury 
believed,  that  she  had  been  informed  by  some  person  upon  whom  she 
honestly  thought  she  had  reason  to  rely,  and  did  believe,  that  her  hus- 
band was  dead,  whereas  in  fact  she  had  been  imposed  upon,  and  her 
husband  was  alive. 

What  operates  strongly  on  my  mind  is  this,  that  if  the  legislature 
intended  to  prohibit  a  second  marriage  in  the  lifetime  of  a  former  hus- 
band or  wife,  and  to  make  it  a  crime,  subject  to  the  proviso  as  to  seven 
years,  I  do  not  believe  that  language  more  apt  or  precise  could  be  found 
to  give  effect  to  that  intention  than  the  language  contained  in  the  57th 
section  of  the  Act  in  question.  In  this  view  I  am  fortified  by  several 
sections  of  the  same  Act,  where  the  words  "unlawfully"  and  "mali- 
ciously and  unlawfully"  are  used  (as  in  s.  23),  and  by  a  comparison 
of  them  with  the  section  in  question  (s.  57),  where  no  such  words  are 
to  be  found.  I  especially  rely  upon  the  55th  section,  by  wliich  it  is 
enacted  that  "  whosoever  shall  unlawfully"  (a  word  not  used  in  s.  57) 
"  take  or  cause  to  be  taken  any  unmarried  girl  being  under  the  age  of 
sixteen  years  out  of  the  possession  of  her  father  or  mother,  or  any 
other  person  having  the  lawful  care  or  charge  of  her,  shall  be  guilty  of 
a  misdemeanor."  Fifteen  out  of  sixteen  judges  held,  m  the  case  of 
Eeo-.  V.  Prince,  L.  R.  2  C.  C.  154,  that,  notwithstanding  the  use  of  the 
word  "unlawfully,"  the  fact  of  the  prisoner  believing  and  having 
reason  to  believe  that  the  girl  was  over  sixteen  afforded  no  defence. 
This  decision  is  approved  of  upon  the  present  occasion  by  five  judges, 
making  in  all  twenty  against  the  nine  who  are  in  favor  of  quashing  the 
conviction.  To  the  twenty  I  may,  I  think,  fairly  add  Tindal,  C  J  , 
in  Reg.  v.  Robins,  1  C.  &  K.  456,  and  Willes,  J.,  in  Reg.  v.  My  cock, 
12  Cox  C.  C.  28. 

I  rely  also  very  much  upon  the  5th  section  of  the  Act  passed  in  1885 
for  the  better  protection  of  women  and  girls  (48  &  49  Vict.  c.  69),  by 
which  it  was  enacted  that  "  any  person  who  unlawfully  and  carnally 
knows  any  girl  above  thirteen  and  under  sixteen  years  shall  be  guilty 
of  a  misdemeanor  ;  "  but  to  that  is  added  a  proviso  that  "  it  shall  be  a 
sutflcient  defence  if  it  be  made  to  appear  to  the  court  or  jury  before 


ey.CT.  !.]  REGINA    V.   TOLSOX.  301 

whom  the  clinrge  shrill  he  brought  that  the  person  charged  had  reason- 
ahlc  cause  to  l)elievr,  aud  did  believe,  tiiat  the  girl  was  of  or  above 
the  age  of  sixteen."  It  is  to  be  observcil  that  iiotwithslantling  the 
word  "  uulawfully  "  appears  in  titis  section  it  was  considered  necessar}- 
to  add  the  proviso,  without  which  it  would  have  been  no  dL-fcncc  that 
the  accused  had  reasonable  cause  to  believe,  and  did  bclit-vc,  that  tlie 
girl  was  of  or  above  the  age  of  sixteen.  Those  who  hold  that  the  con- 
viction in  the  present  case  should  be  (piashcd  really  iin|>ort  into  the 
57th  section  of  the  21  &  2^)  Vict  c.  100,  the  proviso  which  is  in  the 
5th  section  of  the  48  &  [[)  Vict.  c.  69,  contrary,  as  it  seems  to  mc,  to 
the  decision  in  Reg.  o.  Prince,  and  to  the  hitherto  undisputed  canons 
for  construing  a  statute. 

It  is  saiil  that  an  indictment  for  the  offence  of  bigamy  commences  b}- 
stating  that  the  accused  feloniously  married,  etc.,  and  consequently  the 
principle  o^nens  rea  is  applicable.  To  this  I  answer  that  it  is  to  the 
language  of  the  Act  of  Parliament,  and  not  to  that  of  the  indictment, 
the  court  has  U)  look.  I  consider  the  indictment  would  be  perfectly 
good  if  it  stated  that  the  accused,  being  married,  married  again  in  the 
lifetime  of  his  or  her  wife  or  husband,  contrary  to  the  statute,  and  so 
was  guilty  of  felony. 

I  am  very  sorry  we  had  not  the  advantage  of  having  the  case  argued 
by  counsel  on  behalf  of  the  Crown.  My  reason  for  abstaining  from 
commenting  upon  the  cases  cited  by  Mr.  Henry  in  his  very  able  argu- 
ment for  the  prisoner  is  because  the  difference  of  opinion  among  some 
of  the  judges  in  those  cases  is  as  nothing  compared  with  the  solemn 
decision  of  fifteen  out  of  sixteen  judges  in  the  case  of  Keg.  v.  Prince. 
So  far  as  I  am  aware,  in  none  of  the  cases  cited  by  my  learned  l)rotlier3 
was  the  interest  of  third  [)arties,  such  as  the  fact  of  there  l)eing  children 
of  the  second  marriage,  involved.  I  have  listened  with  attention  to 
the  judgments  which  have  been  delivered,  and  I  have  not  heard  a  single 
observation  with  reference  to  this,  to  my  mind,  important  and  essential 
point.  I  am  absolutely  unable  to  distinguish  Keg.  v.  Prince  from  the 
present  case,  and,  looking  to  the  names  of  the  eminent  judges  who 
constituted  the  majority,  and  to  the  rea.sons  given  in  their  jtulgments, 
I  am  of  opinion,  upon  authority  as  well  as  principle,  that  the  conviction 
should  be  aflirmed. 

The  only  observation  which  I  wish  to  make  is  (speaking  for  myself 
only)  that  I  agree  with  my  learned  I^rother  Stephen  in  tiiinking  that 
the  phrases  "  mens  rea  "  and  "  no7i  est  reus  7nsi  mens  sit  rea  "  are  not 
of  much  practical  value,  and  are  not  only  '•  likely  to  mislead,''  but  are 
"absolutely  misleading."  Whether  they  have  had  that  effect  in  tho 
present  case  on  the  one  side  or  the  other  it  is  not  for  me  to  say. 

I  think  the  conviction  should  be  alllrmed.  My  brothers  Dknman, 
Pollock,  Field,  and  Huddleston  agree  with  this  judgment. 

Cou  V  ict  ion  q  ua.-<h<;(L 


302  MYERS   V.    STATE.  [CHAP.  VIIL 


MYERS   V.  STATE. 
Supreme  Couut  of  Errors  of  Connecticut.    1816. 

[lii^ported  1  Connecticut,  502.] 

This  was  an  information,  brouglit  before  tlie  count}-  court,  on  the 
statute,^  for  suffering  £^nd  allowing  A.  M.  and  others  to  travel  in  a 
hackney-coach  owned  V)\-  the  defendant,  from  New  Haven  to  Middle- 
town,  on  the  Sabbath-day.- 

The  court  charged  the  jury  that  it  was  incumbent  on  the  defendant, 
if  he  justified  his  act  as  a  case  of  necessity  or  charity,  to  prove  by  evi- 
dence on  the  trial  that  a  case  of  necessity  or  charity  existed,  and  that 
the  representation  of  the  passenger  to  the  driver  did  not  in  law  amount 
to  a  justification,  unless  the  same  was  proved  to  have  been  true  when 
made. 

Swift,  C  J.^  The  letting  of  a  carriage  on  Sunday,  on  the  ground  of 
necessit}-  or  charity,  is  not  prohibited  by  the  statute.  If  then  a  man 
acts  honestly  on  such  principle,  and  really  believes  that  the  case  of 
necessity  or  charity  exists,  he  is  not  criminal.  It  is  true,  a  man  ma^^ 
be  deceived  and  imposed  upon  b}-  falsehood  and  misrepresentation ; 
yet  if  he  verily  believes  that  the  case  exists,  and  acts  on  that  ground, 
it  is  as  much  a  deed  of  charity  in  him,  if  the  fact  does  not  exist,  as  if 
it  does.  It  is  a  letting  of  the  carriage  as  a  matter  of  charity.  Unless 
this  construction  be  adopted,  a  man  may  be  convicted  of  a  crime  when 
he  had  no  intent  to  violate  the  law,  and  when  his  object  was  to  perform 
a  deed  of  charity  conformable  to  law.  This  would  oppugn  the  maxim 
that  a  criminal  intent  is  essential  to  constitute  a  crime. 

It  is  true,  on  this  construction,  attempts  may  be  made  to  evade  the 
statute  ;  but  in  all  cases  it  will  be  a  question  of  fact  to  the  jury  whether 
the  party  acted  under  a  serious  impression  of  the  truth  of  the  repre- 
sentation made  to  him.  If  there  be  any  appearance  of  collusion,  any 
management  to  elude  the  statute,  then  the  excuse  ought  not  to  avail ; 
and  by  the  exercise  of  a  proper  discretion  the  violation  of  this  law 
may  commonly  be  prevented.  But  on  a  different  construction,  all 
works  of  charity  would  be  prevented.  If  a  man  is  bound  to  prove  not 
only  that  he  believed  it  to  be  an  act  of  charity,  but  that  the  facts  existed, 
otherwise  he  should  be  liable  to  be  punished,  there  would  be  very  great 
danger  in  performing  the  charity  which  the  statute  does  not  prohibit. 

The  court,  then,  in  charging  the  jury  that  the  facts  constituting  the 
act  of  charity  must  be  proved  to  have  existed,  committed  an  error. 

1  Oct.  Sess.  1814,  c.  17.  "No  proprietor  ...  of  any  coach  .  .  .  shall  suffer  or  allow 
any  person  or  persons  to  travel,  except  from  necessity  or  charity,  in  such  carriage, 
within  this  state,  on  the  Sabbath  or  Lord's  day." 

2  The  statement  of  facts  has  been  abridged. 

2  The  concurring  opinion  of  Gould,  J. ,  is  omitted. 


SECT.  l]  BIRNEY   V.   STATE.  303 

They  shoiiM  liave  directed  tliejuiT.  if  tlicy  found  that  the  defendant 
had  reasonable  gntund  to  l)tlieve  from  the  representation  made  to  liini 
that  the  ease  of  charity  existed,  and  tiiat  he  honestl}'  acted  under  the 
impression  of  that  helief,  they  oni^ht  to  find  him  not  guilty. 

1  am  of  opinion  there  is  error  in  the  judgment  of  the  county  court.' 


RIRNEY   r.  STATE. 
Sli'UKmk  Colht  oi-   Ohio.     1«37. 

[f\t/)orltil  8  Ohio,  230.] 

Judge  Wood"  delivered  the  opinion  of  the  court. 

The  statute  upon  which  this  inilictment  is  predicated  enacts  "  tliat 
if  any  person  shall  harbor  or  secrete  any  black  or  mulatto  person,  the 
property  of  another,  the  person  so  offending  shall,  on  conviction  tiicreof, 
be  fined  any  sum  not  less  than  ten  nor  more  than  fifty  dollars."  We  are 
first  called  to  consider  wiiether,  under  this  enactment,  the  indictment 
is  sullieient. 

It  is  recjuircd  that  every  indictment  shall  have  a  precise  and  sullieient 
certainty.  The  omission  of  a  word  of  sul)stance  is  fatal.  (2  Haw.  V.  C. 
chap,  "io,  s.  4.)  Here  the  plaintiff  in  error  is  charged  with  harboring 
and  secreting  a  certain  mulatto  girl  by  the  name  of  Matilda,  the  prop- 
erty of  L.  Larkin.  There  is  no  averment  that  the  plaintill"  in  error  knew 
the  facts  alleged,  that  Matilda  was  a  slave  and  the  property  of  L.  Lar- 
kin, or  of  any  other  person  ;  and  such  is  not  the  legal  inference,  in  a 
state  whose  constitution  declares  that  all  are  born  free  and  equal,  and 
that  there  shall  be  neither  slavery  nor  involuntar}*  servitude  within  its 
limits,  except  as  a  punishment  lor  the  commission  of  crimes.  On  the 
contrary,  the  [)resumi)tion  is  in  favor  of  freedom.  The  scienter,  or 
knowledge  of  the  plaintiff  in  error,  of  this  material  fact  was  an  ingredi- 
ent necessary  to  constitute  his  guilt.  This  knowledge  should  have  been 
averred  in  the  indictment,  and  proved  on  the  trial ;  for  without  sucii 
knowledge  the  act  charged  as  a  crime  was  innocent  in  its  character. 
We  know  of  no  case  where  positive  action  is  held  criminal,  unless  the 
intention  accompanies  the  act,  either  cxprcssl}'  or  necessariU'  inferred 
from  the  act  itself.  '■'■Ignorantia  fneff  doth  excuse,  for  such  an  igno- 
rance, many  times,  makes  the  act  itself  morallv  involuntarv."  1  Hide's 
P.  C.  42.    " 

It  is  true  that  the  statute  ui)on  which  the  indictment  is  founded 
omits  the  scienter,  and  the  indictment  covers  all  the  facts  enumerated 
in  that  statute.  But  this  is  not  suHicicnt ;  it  cannot  be  assumed 
that  an   act  which,  independent   of  positive   enactment,  involves   nj 

»  See  Bradley  v.  People,  8  Col.  599.  —  En 

'  The  opiuiou  only  is  given  ;  it  sufficiently  states  the  case 


304  COMMONWEALTH   V.   MASH.  [cHAP.  VIII. 

moral  wrong,  naj-,  an  act  that  in  many  cases  would  be  highly  praise- 
worthy, should  be  made  grievously  criminal,  when  performed  in  total 
unconsciousness  of  the  facts  that  infect  it  with  crime.  This  court  has 
determined  differently.  In  the  case  of  Anderson  against  the  State,  7 
Ohio  Rep.  part  1,  255,  the  plaintiff  in  error  was  indicted  for  uttering 
and  publishing  forged  certificate  of  deposit,  without  averring  his  knowl- 
edge of  such  forgery.  The  statute  under  which  the  indictment  was 
found  does  not,  in  express  terms,  make  this  knowledge  a  constituent 
of  the  crime.  Nevertheless,  the  court  held  that  the  criminality  could 
not  exist  without  the  knowledge,  and  that  an  indictment  that  did  not 
aver  it  was  defective.  That  case  runs  upon  all  fours  with  this,  and  the 
further  investigation  of  the  principles  upon  which  it  is  based  confirms 
the  court  in  the  conviction  that  it  is  correct.  This  judgment  must  be 
reversed  for  this  cause,  and  it  thus  becomes  unnecessary  to  decide  upon 
the  other  points,  so  laboriously  argued  for  the  plaintiff  in  error,  and  of 
a  character  too  important  in  their  bearing  upon  the  whole  countr}',  to 
be  adjudicated  upon  without  necessity.^ 


COMMONWEALTH   v.  MASH. 
Supreme  Judicial  Court  of  Massachusetts.    1844, 

[Reported  7  Metcalf,  472.] 

The  defendant  was  indicted,  on  the  Rev.  Sts.  c  130,  s.  2,  for  marry- 
ing a  second  husband  while  her  former  husband  was  living. 

At  the  trial  in  the  Municipal  Court,  at  August  term,  1843,  there  was 
evidence  tending  to  prove  that  the  defendant  was  married  to  Peter 
Mash  on  the  7th  of  December,  1834,  and  that  she  afterwards  cohabited 
with  him  until  about  the  10th  of  November,  1838,  when  he  left  home 
in  the  morning,  saying  he  should  return  to  breakfast,  and  was  not  after- 
wards heard  from  by  the  defendant  till  about  the  middle  of  May,  1842, 
when  he  returned ;  that  on  the  10th  of  April,  1842,  she  was  married, 
in  Boston,  by  a  clergyman  of  competent  authority  to  solemnize  mar- 
riages in  this  Commonwealth,  to  William  M.  Barrett,  with  whom  she 
cohabited  in  Boston  until  she  heard  that  said  Peter  Mash  was  still  liv- 
ing, when  she  immediately  withdrew  from  said  Barrett,  and  had  no 
intercourse  with  him  afterwards  ;  that  she  was  of  uniformly  good  char- 
acter and  virtuous  conduct,  and  that  she  honestly  believed,  at  the  time 
of  said  second  marriage,  that  said  Peter  Mash  was  dead  ;  that  during 
his  absence,  as  aforesaid,  she  made  many  inquiries,  and  was  unable  to 
obtain  any  information  concerning  him,  or  to  ascertain  whether  he  was 
or  was  not  alive. 

1  See  U.  S.  V.  Beaty,  Hempst.  489 ;  Lee  v.  Lacey,  1  Cranch  C.  C.  263  ;  couf.  State 
V.  B.  &  S.  Steam  Co.  13  Md.  181.  —  Ed. 


SECT.  I.]  COMMONWEALTH   V.    MASH.  305 

The  counsel  for  the  delondaiit  moved  tlic  court  to  instruct  the  jury 
that  if  they  believed  all  the  facts  which  the  aforesaid  evidence  tended 
to  prove,  she  was  entitled  to  an  acquittal.  But  the  court  refused  so  to 
instruct  the  jury,  and  instructed  thcni  tliat  the  defendant's  ignorance 
tliat  iier  said  husl)and,  I'eter  Mash,  was  alive,  and  her  honest  belief 
that  he  was  dead,  constituted  no  legal  defence. 

The  jury  found  the  defendant  guilty,  and  she  filed  exceptions  to  tlie 
instrueliou  of  the  court. 

JLilldt,  for  the  defendant, 

S.  D.  Parker,  for  the  Commonwealth. 

SiiAW,  C.  J.  The  court  are  of  opinion  that  the  instruction  to  the  jury 
was  right.  The  rule  of  law  was  certainly  strongly  expressed  by  the 
judge,  no  doubt  in  consequence  of  the  terms  in  which  the  motion  of  the 
defendant's  counsel  was  exi)ressed.  The  rule,  as  thus  laid  down,  in 
effect  was,  that  a  woman  wliose  husband  suddenly  left  her  without 
notice,  and  saying,  when  he  went  out,  that  he  should  return  immediatel}', 
and  who  is  absent  between  three  and  four  years,  though  she  have  made 
inquiry  after  him,  and  is  ignorant  of  his  being  alive,  but  honestly  believes 
him  to  be  dead,  if  she  marries  again  is  guilty  of  polygamy.  The  cor- 
rectness of  this  instruction  must  of  course  depend  upon  the  construction 
of  the  Rev.  Sts.  c.  13U,  which  regulate  this  subject.  The  second  section 
imposes  a  penalty  upon  any  person  who,  having  a  former  husband  or  wife, 
shall  marry  another  person  ;  with  some  exceptions.  The  third  section 
excepts  from  the  operation  of  the  statute  -'any  person  whose  husband 
or  wife  shall  have  been  continually  remaining  beyond  sea,  or  shall  have 
voluntarily  withdrawn  from  the  other,  and  remained  absent  for  the 
space  of  seven  years  together,  —  the  party  marrying  again  not  knowing 
the  other  to  be  living  within  that  time." 

It  appears  to  us  that  in  a  matter  of  this  importance,  so  essential  to 
the  peace  of  families  and  the  good  order  of  society,  it  was  not  the  inten- 
tion of  the  law  to  make  the  legality  of  a  second  marriage,  while  the 
former  husband  or  wife  is  in  fact  living,  depend  upon  ignorance  of  such 
absent  party's  being  alive,  or  even  upon  an  honest  belief  of  such  per- 
son's death.  Sucii  belief  might  arise  after  a  very  short  absence.  But 
it  appears  to  us  that  the  legislature  intended  to  prescribe  a  more  exact 
rule,  and  to  declare,  as  law,  that  no  one  should  have  a  right,  upon  such 
ignorance  that  the  other  party  is  alive,  or  even  upon  such  honest  belief 
of  his  death,  to  take  the  risk  of  marrying  again,  unless  such  belief  is 
confirmed  by  an  absence  of  seven  years,  with  ignorance  of  the  absent 
party's  being  alive  within  that  time.  It  is  analogous  to  other  provis- 
ions and  rules  of  law,  by  which  a  continued  absence  of  a  person  for 
seven  years,  without  being  heard  of,  will  constitute  a  presumption  of 
his  death.     Loring  y.  Steineman,  1  Met.  204  ;  Greenl.  on  Ev.  s.  41. 

We  are  strongly  confirmetl  in  this  construction  of  the  statute,  and 
that  such  was  the  deliberate  expression  of  the  legislative  will,  by  refer- 
ence to  the  report  of  the  commissioners  for  revising  the  statutes.  It 
appears,  by  their  report  upon  this  provision,  that  they  prescribed  a  much 

20 


306  COMMONWEALTH   V.   BOYNTON.  [CHAP.  VIII. 

more  mitigated  rule,  and  proposed  to  extend  the  exception  "to  any 
person  whose  former  husband  or  wife,  having  been  absent  one  year  or 
more  at  the  time  of  such  second  marriage,  shall  be  believed  to  be  dead." 
This  proposal  was  stricken  out  by  the  committee  appointed  to  consider 
the  report  of  the  commissioners,  and  the  legislature  adopted  their 
amendment,  and  passed  the  law  as  it  stands,  without  the  proposed 
additional  exception.  This  shows  at  least  that  the  attention  of  the 
legislature  was  called  to  the  subject,  and  that  it  was  by  design,  and  not 
through  inadvertence,  that  the  law  was  framed  as  it  is. 

It  was  urged  in  the  argument  that  where  there  is  no  criminal  intent, 
there  can  be  no  guilt ;  and  if  the  former  husband  was  honestly  believed 
to  be  dead,  there  could  be  no  criminal  intent.  The  proposition  stated 
is  undoubtedlv  correct  in  a  general  sense ;  but  the  conclusion  drawn 
from  it  in  this  case  by  no  means  follows.  Whatever  one  voluntarily 
does,  he  of  course  intends  to  do.  If  the  statute  has  made  it  criminal 
to  do  any  act  under  particular  circumstances,  the  party  voluntarily  doing 
that  act  is  chargeable  with  the  criminal  intent  of  doing  it.  On  this 
subject  the  law  has  deemed  it  so  important  to  prohibit  the  crime  of 
polygamy,  and  found  it  so  diflicult  to  prescribe  what  shall  be  sufficient 
evidence  of  the  death  of  an  absent  person  to  w^arrant  a  belief  of  the 
fact,  and  as  the  same  vague  evidence  might  create  a  belief  in  one  mind 
and  not  in  another,  the  law  has  also  deemed  it  wise  to  fix  a  definite 
period  of  seven  years'  continued  absence,  without  knowledge  of  the  con- 
trary, to  warrant  a  belief  that  the  absent  person  is  actually  dead.  One, 
therefore,  who  marries  within  that  time,  if  the  other  party  be  actually 
living,  whether  the  fact  is  believed  or  not,  is  chargeable  with  that  crimi- 
nal intent,  by  purposely  doing  that  which  the  law  expressly  prohibits. 

Exce2)tions  overruled.^ 

[The  court  did  not  pass  sentence  on  the  defendant,  but  took  a  recog- 
nizance for  her  appearance  in  court  at  a  future  day.  On  the  9th  of  July, 
1844.  the  defendant  received  a  full  pardon  from  the  governor,  which 
she  brought  into  court  on  the  15th  of  said  July,  and  pleaded  the  same 
in  bar  of  sentence.     Whereupon  the  court  ordered  her  to  be  discharged.] 


COMMONWEALTH  v.   BOYNTON. 

Supreme  Judicial  Court  of  Massachusetts.     1861. 

[Reported  2 'Allen,  160.] 

Indictment  against  the  defendant  for  being  a  common  seller  of 
intoxicating  liquor.  At  the  trial  in  the  Superior  Court,  after  certain 
sales  of  beer  had  been  testified  to,  the  defendant  offered  evidence  to 
prove  that  the  article  sold  was  not  intoxicating,  and  that,  if  it  were 

1  See,  contra,  Sciuire  v.  State,  46  Iiid.  459.  —  Ed. 


SECT.  I.]  COMMONWEALTH   V.   BOYNTON.  307 

SO,  he  had  no  reason  to  siip[)o.sc  that  it  was  so,  aiul  bought  it  for  beer 
which  was  not  intoxicating,  and  did  not  believe  it  to  be  intoxicating  ; 
but  l?iu<;iiAM,  J.,  rejected  the  hitter  part  of  the  evidence  offered,  and 
instructed  the  jury  that  if  the  defenchmt  sokl  li(|Uor  wliich  was  intoxi- 
cating, as  alleged,  he  might  be  found  guilty,  although  he  did  not  know 
or  suppose  that  it  was  so.  The  defendant  was  convicted,  and  alleged 
exceptions. 

J.  Q-  A.  Gn'l/i/i  for  the  defendant. 

Foster,  Attorney-General,  for  the  Coininonwealth. 

Ho.\R,  J.  The  court  are  of  opinion  that  the  sale  of  intoxicating 
liquors  in  violation  of  the  statute  prohibition  is  not  one  of  those  cases 
in  which  it  is  necessary  to  allege  or  prove  that  the  person  charged 
with  tlie  offence  knew  the  illegal  character  of  his  act ;  or  in  which  a 
want  of  such  knowledge  would  avail  him  in  defence.  If  tiie  defendant 
])urposel3'  sold  the  liquor,  which  was  in  fact  intoxicating,  he  was  bound 
at  his  peril  to  ascertain  the  nature  of  the  article  which  he  sold.  Where 
the  act  is  expressly  prohibited,  without  reference  to  the'  intent  or  pur- 
pose, and  the  party  committing  it  was  under  no  obligation  to  act  in 
the  premises,  unless  he  knew  that  he  could  do  so  lawfully,  if  he  violates 
the  law  he  incurs  the  penalty.  The  salutarj'  rule  that  ever}'  man  is 
conclusiveh'  presumed  to  know  the  law  is  sometimes  productive  of 
hardship  in  particular  cases.  And  the  hardship  is  no  greater  where 
the  law  imposes  the  duty  to  ascertain  a  fact. 

It  could  hardly  be  doubted  that  it  would  constitute  no  defence  to  an 
indictment  for  obstructing  a  highway,  if  the  defendant  could  show 
that  he  mistook  the  boundaries  of  the  wa}-,  and  honestl}'  supposed 
that  he  was  placing  the  obstruction  upon  his  own  land.  The  same 
principle  was  applied  in  the  case  of  bigam}'.  Commonwealth  v.  Mash, 
7  Met.  472  ;  and  in  the  case  of  adultery,  Commonwealth  v.  Elwell,  2 
Met.  190. 

Mxceptions  overruled.' 


1  See  ncc.  Com.  v.  Farren,  9  All.  489  ;  State  v.  Smith,  10  R.  I.  258  (selUng  adul- 
terated milk);  State  v.  Stanton,  37  Conn.  421  (selling  adulterated  liquor). 

Contra,  Teague  v.  State,  25  Tex.  Ajip.  577  (selling  diseased  meat). 

On  the  same  principle  it  has  been  held  that  one  is  guilty  (under  a  statute  forbid- 
ding it)  for  allowing  a  minor  to  remain  in  his  billiard  saloon,  though  he  did  not  know 
that  the  youth  was  a  minor.  State  v.  Probasco,  62  la.  400.  (See,  contra,  Marshall  v. 
State,  49  Ala.  21 ;  Stern  v.  State,  53  Ga.  220.)  The  same  decision  has  been  reached 
in  a  prosecution  upon  a  statute  forbidding  the  sale  of  intoxicating  liquor  to  a  minor. 
McC'utcheon  v.  Peojde,  69  111.  fiOl  ;  Ulrich  v.  Cora.,  6  Bn.sh,  400  ;  In  re  Carlson's 
bicense,  127  Pa.  330;  State  v.  Hartfiel,  24  Wis.  60.  (See,  contra,  Mulreed  v.  State, 
107  Ind.  62.)  So  in  the  case  of  a  sale  to  a  common  drunkard.  Barnes  v.  State,  19 
Conn.  398.     (See,  contra,  Williams  v.  State,  48  Ind.  306). 

On  the  same  ground  one  is  held  guilty  under  a  statute  forbidding  the  sale  of  oleo- 
margarine, though  he  sold  oleomargarine  in  ignorance  of  its  real  nature.  State  v. 
Newton,  50  N.  J.  534;  Com.  v.   Weiss,  139  Pa.  247. 

See  also  U.  S.  v.  Leathers,  6  Sawy.  17;  People  v.  Harris,  29  Cal.  67S  ;  State* 
Welch,  21  Minn.  22.  — Ed. 

// 


!03  COMMONWEALTH   V.   THOMPSON.  [CHAP.  Vlll. 


V 


y. 


COMMONWEALTH    v.   THOMPSON. 
Supreme  Judicial  Coukt  of  Massachusetts.     1863. 

[Reported  6  Allen,  59 Kj 


^         Indictment  for  adultery  with  Eraeline  B.  Carlton. 

At  the  trial  in  the  Superior  Court,  before  Rockwell,  J.,  it  appeared 
that  in  November,  1861,  the  defendant  was  married  to  said  Emeline, 
and  lived  with  her  as  his  wife  thereafter.  The  defendant  contended 
on  the  evidence  which  was  offered  that  he  then  believed  her  to  be  a 
widow,  and  that  she  had  no  knowledge  that  her  former  husband  was 
alive,  and  had  not  seen  or  heard  from  him  for  eleven  years ;  and  he 
asked  the  court  to  instruct  the  jury  that  if  he  married  and  cohabited 
with  her  without  any  knowledge  that  she  had  a  husband  living,  and 
believing  that  she  had  no  husband  living,  such  cohabitation  would  not 
amount  to  the  crime  of  adulter}',  even  if  her  husband  was  not  dead. 
The  judge  refused  to  give  these  instructions,  but  instructed  the  jury 
that  if  the}'  were  satisfied  that  the  intercourse  took  place  as  alleged, 
it  would  be  adulter}-  if  the  former  husband  was  still  living,  although 
the  defendant  had  no  knowledge  or  belief  that  he  was  alive  ;  and  he 
excluded  the  evidence  which  was  offered. 

The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged 
exceptions. 

G.  F,  Verry,  for  the  defendant. 

Foster,  Attorney-General,  for  the  Commonwealth. 

Dewey,  J.  The  court  properly  refused  to  rule  that  upon  the  mere 
showing  that  the  defendant  married  the  said  Emeline  B.  Carlton  and 
cohabited  with  her  without  any  knowledge  that  she  had  a  husband 
living,  and  believing  that  she  had  no  husband  living,  the  defendant 
could  not  be  convicted  of  adultery,  although  she  then  had  a  legal  hus- 
band in  full  life. 

The  objection  urged  in  behalf  of  the  defendant,  that  to  make  any 
i  act  criminal  there  must  be  a  criminal  intent,  will  not  screen  the  guilty 
-'  part}-  under  such  circumstances.  Commonwealth  y.  Mash,  7  Met. 
■     474. 

This  would  dispose  of  the  case  but  for  the  facts  which  were  offered 
to  be  proved,  that  the  husband  had  been  absent  from  his  wife  for 
eleven  years  preceding  the  time  when  the  acts  complained  of  took 
place,  and  that  his  wife  had  not  seen  or  heai'd  of  him  during  that 
pei-iod,  and  had  no  knowledge  that  he  was  alive. 

It  is  a  well  settled  rule  of  law  that,  upon  a  person's  leaving  his  home 
for  temporary  purposes  of  business  or  pleasure,  and  not  being  heard 
of  or  known  to  be  living  for  the  term  of  seven  years,  the  presumption 
arises  of  his  death.  2  Stark.  Ev.  (4th  Amer.  ed.)  458.  Loring  v. 
Steineman,  1  Met.  211.  Although  this  is  merely  a  presumption  nn- 
thorized  by  law,  and  may  be  controlled  by  evidence  showing  that  the 


1 


\l 


SECT.  I.]  STATE   V.   GOODENOW.  309 

fact  was  otherwise,  yet  in  reference  to  acts  of  other  parties,  and  iu 
tleciding  whether  tliey  are  criminal,  this  presumption  is  allowed  to 
have  its  proper  ellect.  Thus  in  reference  to  the  criminal  intercourse 
alleged  to  have  taken  place  between  Mrs.  Carlton  antl  the  defendant, 
supposing  she  had  been  indicted  for  iKjlygamy,  and  the  fact  had  ap- 
peared of  the  absence  of  her  husband  for  eleven  years,  she  not  knowing 
him  to  be  living  during  that  time,  this  would  constitute  a  legal  defence 
to  the  criminal  charge.  Gen.  Sts.  c  105,  §  5.  We  think  this  statute, 
though  not  in  terms  applicable  to  an  indictment  for  adultery,  recog- 
nizes a  rule  that  should  oi)erate  as  a  legal  defence  to  the  charge  of 
adultery,  when  the  alleged  criminal  acts  arc  the  marrying  and  cohabit- 
ing with  a  woman  whose  husband  had  been  absent  more  than  seven 
years,  and  not  known  to  the  defendant  to  have  been  alive  during  that 
period. 

The  proper  instructions  to  the  jury  in  a  case  like  the  present  would 
be,  that  if  it  appeared  that  the  husband  had  absented  himself  from 
his  wife,  and  remained  absent  for  the  space  of  seven  years  together, 
a  man  who  should,  under  the  existence  of  such  circumstances,  and 
not  knowing  her  husband  to  have  been  living  within  that  time,  in  good 
faith  and  in  the  belief  that  she  had  no  husband,  intermarry  with  her 
and  cohabit  with  her  as  his  wife,  would  not  by  such  acts  be  criminally 
punishable  for  adultery,  although  it  should  subsequently  appear  that 
the  former  husband  was  then  living. 

Exceptions  sustained.'^ 


V 


STATE  V.   GOODENOW. 
Supreme  Judicial  Court  of  Maine.     1876.         f^ 

[Reported  6.5  Maine,  30.] 

Peters,  J.'^  The  respondents  are  joint!}-  indicted  for  adultery,  they 
having  cohabited  as  husband  and  wife  while  the  female  respondent 
was  lawfully  married  to  another  man  who  is  still  alive.  The  only 
question  found  in  the  exceptions  is,  whether  the  evidence  offered  and 
rejected  should  have  been  received.  This  was,  that  the  lawful  hus- 
band had  married  again,  and  that  the  justice  of  the  peace  who  united 
the  resix)ndents  in  matrimony  advised  them  that,  on  that  account,  thej' 
had  the  right  to  intermarry,  and  that  they  believed  the  statement  to 
be  true,  and  acted  upon  it  in  good  faith.  It  is  urged  for  the  respond- 
ents that  those  facts  would  show  that  they  acted  without  any  guilty 
intent.     It  is  undoubtedly  true  that  the  crime  of  adultery  cannot  be 

1  On  a  new  trial  it  appeared  that  Emeline  B.  Carlton  had  herself  left  her  husband, 
of  whom  she  had  not  thereafter  heard  for  eleven  years.  As  the  exception  in  the  stat- 
ute (Gen.  Stats,  c.  le.*),  §  5)  did  not  cover  the  case,  defendant  was  found  guilty,  and 
the  conviction  upheUi.     11  All.  23.  —  Eu. 

'  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


^. 


310  STATE   V,   GOODENOW.  [CHAP.  YIII. 

committed  without  a  criminal  intent.  But  the  intent  uicay  be  inferred 
from  the  criminality  of  the  act  itself  Lord  MansQeld  states  the  rule 
thus:  "Where  an  act,  in  itself  indifferent,  beconjes  criminal  if  done 
with  a  particular  intent,  there  the  intent  must  be  proved  and  found  ; 
but  where  the  act  is  in  itself  unlawful,  the  proof  of  justification  or 
excuse  lies  on  the  defendant ;  and  in  failure  thereof,  the  law  implies 
a  criminal  intent." 

Here  the  accused  have  intentionally  committed  an  act  which  is  in 
itself  unlawful.  In  excuse  for  it,  they  plead  their  ignorance  of  the 
law.  This  cannot  excuse  them.  Ignorance  of  the  law  excuses  no 
one.  Besure,  this  maxim,  like  all  others,  has  its  exceptions.  None 
of  the  exceptions,  however,  can  apply  here.  The  law,  which  the  re- 
spondents are  conclusively  presumed  to  have  known,  as  applicable  to 
their  case,  is  well  settled  and  free  of  all  obscurity  or  doubt.  It  would 
perhaps  be  more  exact  to  say,  they  are  bound  as  if  tliey  knew  the 
law.  Late  cases  furnish  some  interesting  discussions  upon  this  sub- 
ject. Cutter  V.  State,  36  New  Jer.  125  ;  United  States  v.  Anthony, 
11  Blatch.  200;  United  States  v.  Taintor,  id.  374;  2  Green's 
Crim.  Law  R.  218,  244,  275,  589  ;  Black  v.  Ward,  27  Mich.  191  ; 
s.  c.  15  Amer.  Law  Reports,  162  and  note,  171.  The  rule,  though 
productive  of  hardship  in  particular  cases,  is  a  sound  and  salutary 
maxim  of  the  law.  Then  the  respondents  say  that  they  were  misled 
bv  the  advice  of  the  magistrate,  of  whom  tliev  took  counsel  concerning 
.  their  marital  relations.  But  the  gross  ignorance  of  the  magistrate 
/  cannot  excuse  them.  They  were  guilty  of  negligence  and  fault,  to 
take  his  advice.  The}'  were  bound  to  know  or  ascertain  the  law  and 
the  facts  for  themselves  at  their  peril.  A  sufficient  criminal  intent  is 
conclusively  presumed  against  them,  in  their  faihire  to  do  so.  The 
facts  offered  in  proof  may  mitigate,  but  cannot  excuse,  the  offence 
charged  against  them.  There  is  no  doubt  that  a  person  might  commit 
an  unlawful  act,  through  mistake  or  accident,  and  with  innocent  in- 
tention, where  there  was  no  negligence  or  fault  or  want  of  care  of  an}- 
kind  on  his  part,  and  be  legall}-  excused  for  it.  But  this  case  was  far 
from  one  of  that  kind.  Here  it  was  a  criminal  heedlessness  on  the 
part  of  both  of  the  respondents  to  do  what  was  done  b}"  them.  The 
Massachusetts  cases  cited  by  the  counsel  for  the  state,  go  much  further 
than  the  facts  of  this  case  require  us  to  go  in  the  same  direction,  to 
inculpate  the  respondents.  Besides  those  cases,  see  also  Common- 
wealth V.  Elwell,  2  Met.  190;  Commonwealth  v.  Farren,  9  Allen, 
489;  Commonwealth  v.  Goodman,  97  Mass.,  117;  Commonwealth  v. 
Emmons,  98  Mass.  6.  We  see  no  relief  for  the  respondents  except, 
if  the  facts  warrant  it,  through  executive  interposition. 

Exceptions  overruled  A 

1  See  U.  S.  V.  Anthony,  11   Blatch.   200;  U.  S.  v.  Taintor,  11  Blatch.  374;  U.  S.  v. 
Adams,  2  Dak.  305.  —  Ed. 


SECT.  l1  REGINA  V.   LESLEY.  311 


CHAPTER  IX. 

JUSTIFICATION. 

SECTION    I. 

Public   Authority. 

Foster,  C.  L.  267.  The  execution  of  malefactors  under  sentence  of 
death  for  capital  crimes  hath  been  considered  by  former  writers  as  a 
species  of  homicidejfounded  in  necessity.  I  think  it  hath  with  propri- 
ety enough  been'so  considered  ;  for  the  ends  of  government  cannot  be 
answered  without  it.  .  .  .  Where  persons  having  authority  to  arrest  or 
imi)rison,  using  the  proper  means  for  that  purpose,  are  resisted  in  so 
doing,  and  the  party  naaking  resistance  is  killed  in  the  struggle,  this 
homicide  is  justifiable.  .  .  .  Where  a  felony  is  committed,  and  the 
felon  tleeth  from  justice,  and  a  dangerous  wound  is  given,  it  is  the 
duty  of  every  man  to  use  his  best  endeavors  for  preventing  an  escape ; 
and  if  in  the  pursuit  the  party  fleeing  is  killed,  %ohere  he  cannot  be 
othertcise  overtaken,  this  will  be  deemed  justifiable  homicide ;  for  the 
pursuit  was  not  barely  warrantable,  it  is  what  the  lawrequireth  and  will 
punish  the  wilful  neglect  of. 


REGINA  V.   LESLEY. 
Crown  Case  Reserved.     1860. 

[Reported  Bell,  220 ;  8  Cox  C.  C.  269.] 

Erle,  C.  J.^  In  this  case  the  question  is  whether  a  conviction  for 
false  imprisonment  can  be  sustained  upon  the  following  facts. 

The  prosecutor  and  others,  being  in  Chili,  and  subjects  of  that  state, 
were  banished  b}-  the  government  from  Chili  to  England. 

1  The  opinion  only  is  given.  In  addition  to  the  facts  therein  stated,  the  following 
may  he  useful  :  — 

It  appeared  hy  the  evidence  for  the  prosecution  that  the  prisoners  requested  the 
defendant  to  take  them  to  Peru,  which  was  near,  offering  to  pay  him  what  the  Govern- 
ment of  Chili  paid  him,  but  that  the  defendant  refused,  on  the  ground  that  his  contract 
recjuired  him  to  carry  the  prisoners  to  Liverpool.  They  made  no  other  request  to  be 
put  ashore.  Tlie  vessel  touched  at  the  Azores,  and  the  defendant  made  holes  in  the 
boats  to  prevent  the  escape  of  the  prisoners. 

Wat.son,  B.,  who  tried  the  case,  directed  a  verdict  of  guilty,  and  reported  the  cas» 
to  the  Court  for  Crown  Cases  Reserved.  —  Ed. 


312 


EEGINA   V.   LESLEY. 


[chap,  r 


The  defendant,  being  master  of  an  English  merchant  vessel  lying  in 
the  territorial  waters  of  Chili,  near  Valparaiso,  contracted  with  that 
government  to  take  the  prosecutor  and  his  companions  from  Valparaiso 
to  Liverpool,  and  the}-  were  accordingly  brought  on  board  the  defen- 
dant's vessel  by  the  officers  of  the  government  and  carried  to  Liverpool 
by  the  defendant  under  his  contract.  Then,  can  the  conviction  be 
sustained  for  that  which  was  done  within  the  Chilian  waters?  YTe 
answer  no. 

We  assume  that  in  Chili  the  act  of  the  government  towards  its  sub- 
jects was  lawful ;  and  although  an  English  ship  in  some  respects  carries 
■with  her  the  laws  of  her  country  in  the  territorial  waters  of  a  foreign 
state,  yet  in  other  respects  she  is  subject  to  the  laws  of  that  state  as  to 
acts  done  to  the  subjects  thereof. 

We  assume  that  the  government  could  justify  all  that  it  did  within 
its  own  territory,  and  we  think  it  follows  that  the  defendant  can  justify 
all  that  he  did  there  as  agent  for  the  government  and  under  its  author- 
ity. In  Dobree  v.  Napier,  2  Bing.  N.  C.  781,  the  defendant,  on  behalf 
of  the  Queen  of  Portugal,  seized  the  plaintiffs  vessel  for  violating  a 
blockade  of  a  Portuguese  port  in  time  of  war.  The  plaintiff  brought 
trespass  ;  and  judgment  was  for  the  defendant,  because  the  Queen  of 
Portugal,  in  her  own  territory,  had  a  right  to  seize  the  vessel  and  to 
employ  whom  she  would  to  make  the  seizure  ;  and  therefore  the  defend- 
ant, though  an  Englishman  seizing  an  English  vessel,  could  justify  the 
act  under  the  employment  of  the  Queen. 

We  think  that  the  acts  of  the  defendant  in  Chili  become  lawful  on 
the  same  principle,  and  therefore  no  ground  for  the  conviction. 

The  further  question  remains.  Can  the  conviction  be  sustained  for 
that  which  was  done  out  of  the  Chilian  territory?    And  we  think  it  can. 

It  is  clear  that  an  English  ship  on  the  high  sea,  out  of  any  foreign 
territory,  is  subject  to  the  laws  of  England  ;  and  persons,  whether  for- 
eign or  English,  on  board  such  ship,  are  as  much  amenable  to  English 
law  as  the}-  would  be  on  English  soil.  In  Regina  v.  Sattler,  1  D.  &  B. 
C.  C.  525,  this  principle  was  acted  on,  so  as  to  make  the  prisoner,  a  for- 
eigner, responsible  for  murder  on  board  an  English  ship  at  sea.  The 
same  principle  has  been  laid  down  by  foreign  writers  on  international 
law,  among  which  it  is  enough  to  cite  Ortolan,  "  Sur  la  Diplomatic  de 
la  Mer,"  Uv.  2.  cap.  13. 

The  INIerchant  Shipping  Act,  17  &  18  Vict.  c.  104,  s.  267,  makes  the 
master  and  seamen  of  a  British  ship  responsible  for  all  offences  against 
property  or  person  committed  on  the  sea  out  of  her  Majesty's  dominions 
as  if  they  had  been  committed  within  the  jurisdiction  of  the  Admiralty 
of  England. 

Such  being  the  law,  if  the  act  of  the  defendant  amounted  to  a  false 
imprisonment  he  was  liable  to  be  convicted.  Now,  as  the  contract  of 
the  defendant  was  to  receive  the  prosecutor  and  the  others  as  prisoners 
on  board  his  ship,  and  to  take  them,  without  their  consent,  over  the  sea 
to  England,  although  he  was  justified  in  first  receiving  them  in  Chili, 


SECT.  I.]         STATE   V.    MAYOR   AND    ALDKRMEN    OF   KNOXVILLE.  olu 

yet  that  justificiition  ceased  when  he  passed  the  line  of  Chilian  juris- 
diction, and  after  that  it  was  a  wrong  which  was  intentionally  planned 
and  executed  in  pursuance  of  the  contract,  amounting  in  law  to  a  false 
inipriscMiinent. 

It  ma}'  be  that  transportation  to  England  is  lawful  by  the  law  of 
Chili,  and  that  a  Chilian  ship  might  so  lawfully  transport  Chilian  sub- 
jects ;  but  for  an  English  ship  the  laws  of  Chili,  out  of  the  state,  are 
powerless,  and  the  lawfulness  of  the  acts  must  be  tried  by  English  law. 

For  these  reasons,  to  the  extent  above  mentioned,  the  conviction  is 
atlirmed.  Conviction  confirmed  accordingly.^ 


STATE   V.   MAYOR   AND   ALDERMEN   OF   KNOXVILLE. 
Supreme  Court  of  Tennessee.     1883. 

[Reported  12  Lea,  146.] 

Freeman,  J.,  delivered  the  opinion  of  the  coiirt.'^ 

It  a[)pears  from  this  record  that  in  the  latter  part  of  the  year  1882, 
and  first  of  1883,  the  small-pox,  as  an  epidemic,  prevailed  to  a  con- 
siderable extent.  The  city  of  Knoxville,  as  well  as  the  county,  thought 
it  their  duty,  through  their  authorized  agencies,  to  take  active  measures 
to  relieve  as  well  as  prevent  the  spread  of  the  disease  both  in  the  city 
and  the  surrounding  country.  To  this  end  a  small-pox  hospital  was 
established  at  the  fair-grounds,  about  two  miles  from  the  city,  with  suita- 
ble buildings  for  receiving  infected  patients,  and  two  physicians,  Drs. 
Iludgins  and  vShaw.  employed,  tlie  one  by  the  city,  the  other  b\'  the 
county,  to  attend  patients  suffering  with  the  disease.  Among  the  pre- 
cautionary measures  taken  to  prevent  the  spread  of  the  plague,  the 
clothing,  beds,  and  bedsteads  used  by  persons  who  had  the  disease,  and 
either  recovered  or  died,  were  directed  to  be  burnt,  no  doubt  under  the 
direction  of  the  attending  physicians.  This,  we  take  it,  was  done  regu- 
larly and  frequently  for  some  months,  as  often  as  occasion  required. 
The  fair-ground's  property  consisted  of  between  sixt}'  and  sixty-five 
acres  of  land,  the  building  being  within  this  property,  and  the  infected 
articles  burnt  on  these  grounds,  probably  in  pits  dug  for  the  purpose. 
The  burning  seems  to  have  been  some  four  hundred  yards  from  the 
nearest  houses,  but  there  appear  to  have  been  numerous  dwellings 
occupied  about  that  distance,  and  farther  off,  but  still  liable,  more  or 
less  to  be  affected  by  the  smoke  and  the  scent  from  the  burning  cloth- 
ing, etc.     That  this  at  times  was  more  or  less  offensive,  is  probable,  if 

1  For  the  extent  to  which  the  cominaiid  of  a  military  or  navnl  superior  officer  will 
justify  a  criminal  act,  see  Reg.  v.  Thomas,  1  Russ.  Crimes,  731  ;  Reg.  v.  Hutchinson, 
9  Coi  C.  C.  555;  U.  S.  v.  Clark,  31  F.  R.  710,  w/ra.  —  Ed. 

'^  Part  of  the  opinion  is  omitted. 


314  STATE   V.   MAYOR   AND   ALDERMEN    OF   KNOXVILLE.      [CHAP.  IX. 

not  certain.  For  a  nuisance,  the  result  of  this  burning  and  the  unpleas- 
ant effects  of  the  smoke  thus  generated  and  disseminated,  the  defendants 
are  indicted. 

The  jur}'  have  found  the  defendants  guilt}',  and  on  the  facts,  that  is 
of  the  existence  of  the  smoke,  and  of  its  rendering  the  occupation  of 
the  houses  of  persons  living  hard  by  uncomfortable,  and  the  air  less 
pure  temporarih'  than  otherwise  would  have  been  the  case  from  the 
nature  of  their  location,  there  is  no  ground  on  which  this  court  could 
reverse  the  finding  of  facts  for  want  of  testimon}-  to  sustain  it. 

The  question  is,  whether  this  finding  was  under  a  correct  statement 
of  the  law  by  the  court  below,  and  whether  there  was  a  sufficient  justi- 
fication and  authority  for  what  was  done ;  whether  his  Honor  gave 
defendants  the  benefit  of  the  rules  of  law  tending  to  show  such  justifi- 
cation and  authority'  for  their  acts,  which  are  not  of  themselves  denied 
or  serioush'  controverted. 

The  proof  very  definitely  tended  to  show  that  burning  the  -articles 
mentioned  was  the  best  means  known  of  preventing  the  spread  of  infec- 
tion, if  not  the  onl}-  certain  means  of  doing  so,  that  it  was  the  uniform 
practice  in  hospitals  where  such  diseases  were  being  treated,  and  recog- 
nized as  the  accredited  mode  recommended  and  endorsed  by  the  best 
lights  of  the  medical  profession. 

If  this  be  so,  then  the  simple  question  is,  whether  parties  using  such 
means  so  accredited,  in  good  faith,  shall  be  held  criminally  liable  if  they 
should  produce  temporary-  inconvenience  to  other  parties  near  bj- ;  for 
this  is  the  substance  of  the  request  refused  by  his  Honor. 

The  loss  to  the  individuals  was  onl}-  a  temporar}-  one,  by  having  the 
air  for  a  time  impregnated  with  smoke,  offensive  though  it  was  ;  yet  if 
this  was  done  in  order  to,  and  did  reasonabl}'  tend  to,  prevent  the 
spread  of  a  loathsome  and  dangerous  disease,  b}'  which  the  lives  of 
from  twenty-five  to  fift}'  per  cent  of  persons  attacked  are  liable  to  die,  as 
one  ph3'sician  swears  in  this  case,  then  it  is  too  clear  to  doubt  that  the 
interest  of  the  life  of  man}-  cannot  be  permitted  to  be  perilled  that  others 
may  enjoy  the  air  untainted  by  smoke  from  clothing  infected  by  the 
disease  being  burned  at  a  reasonably  safe  distance  from  their  dwellings. 
If  you  may  rightfully  destroy  the  house  in  which  a  man  dwells  in  order 
to  prevent  the  spread  of  a  fire  or  the  ravages  of  a  pestilence,  it  follows 
you  may  much  more  destroy  for  a  time  the  salubrity  of  the  air,  provided 
it  shall  tend  reasonably  to  the  result  demanded  by  the  public  interest. 

We  do  not  deem  it  necessary  to  enlarge  on  such  a  proposition. 

The  rule  applicable  to  such  a  case  is  that,  if  the  act  was  done  by 
public  authority  or  sanction,  and  in  good  faith,  and  was  done  for  the 
public  safety  and  to  prevent  the  spread  of  the  disease,  and  such  means 
used  as  are  usually  resorted  to  and  approved  by  medical  science  in  such 
cases,  and  was  done  with  reasonable  care  and  regard  for  the  safety  of 
others,  then  the  parties  were  justified  in  what  they  did,  and  the  parties 
inconvenienced  could  not  complain,  nor  could  the  state  enforce  a  crimi- 
nal liability  for  results  of  tcu)porary  inconvenience  or  unpleasantness 


SECT.  II.]  REGINA   V.    GRIFFIN.  315 

that  accrue  from  the  use  of  such  proper  and  accredited  means  for  the 
safety  of  the  community  against  the  si)read  of  disease. 

The  theory  of  his  Honor  is  tiie  opposite  of  tliis,  and  is  erroneous.     Let 
the  judgment  be  reversed  and  the  case  remanded  for  a  new  trial. 


SECTION    II. 

Domestic  Authority. 

Foster,  C.  L.  262.  Parents,  masters,  and  other  persons,  having 
authorit}'  in  foro  domestico,  may  give  reasonable  correction  to  those 
under  their  care ;  and  if  death  ensueth  witliout  their  fault,  it  will  be 
no  more  than  accidental  death.  But  if  the  correction  exceedeth  the 
bounds  of  due  moderation,  either  in  the  measure  of  it  or  in  the 
instrument  made  use  of  for  that  purpose,  it  will  be  either  murder  or 
manslaughter  according  to  the  circumstances  of  the  case.^ 


REGINA  V.   GRIFFIN. 

Liverpool  Assizes.     1869. 

[Reported  1 1  Cox  C.  C.  402.] 

The  prisoner,  David  Griffin,  was  indicted  for  the  manslaughter  of 
Ann  GrilHn,  at  Liverpool,  on  the  7th  of  November,  1869. 

Tlie  deceased,  wlio  was  tlie  daughter  of  the  prisoner,  was  two  years 
and  six  months  old,  and  her  death  took  place  under  the  following 
circumstances. 

On  the  7th  of  November  the  prisoner's  wife  had  occasion  to  leave 
the  house,  the  deceased,  with  her  brother  and  sister,  being  at  that  time 
in  bed,  in  a  room  adjoining  that  in  which  the  prisoner  was  sitting. 
During  the  absence  of  his  wife,  the  prisoner  heard  the  deceased  crying, 
and  went  into  the  room  where  the  deceased  was,  and  took  her  out  of 
bed  into  another  room.  As  he  was  doing  this  she  committed  some 
childish  fault;  this  made  the  prisoner  angry  ;  and,  after  having  placed 
her  in  the  other  room,  he  got  a  strap  one  inch  wide  and  eighteen 
inches  long  and,  having  turned  up  her  clothes,  gave  her  from  six  to 
twelve  severe  strokes  over  the  lower  part  of  the  back  and  riglit  tliigli. 
Deceased  did  not  cry  much  at  the  time,  but  appeared  ver}'  friglitened ; 

»  See  Rej;.  v.  Hopley,  2  F.  &  F,  202;  Com.  v.  Randall,  4  Gmy,  .S6.  As  to  the  ri.^ht 
of  a  liusbanii  to  beat  or  restrain  his  wife,  see  Reg.  v.  Jackson  (1891),  1  Q.  B.  671 ;  Com. 
V.  McAfee,  108  Mass.  458  ;  People  v.  Winters,  2  Park.  C.  K.  10.  —  Ed. 


316  KKX    V.    COMPTON.  [CHAP.  IX. 

she  never  recovered  from  the  effects,  and  died  on  the  following 
Wednesda}',  November  10. 

Medicalevidence  was  given  to  the  effect  that  the  deceased  had  been 
a  healthy  child  and  well  nourished,  and  that  the  cause  of  death  was 
congestion,  accelerated  b}-  a  shock  to  the  nervous  system,  produced 
by  the  severe  beating  which  the  prisoner  had  given  it,  the  marks  of 
which  were  clearly  seen  at  the  2^ost  ynortem  examination  on  the  day 
following  her  death. 

Ilairthorne,  for  the  prisoner,  contended  that  there  was  no  case  to 
go  to  the  jury,  for  the  prisoner  had,  as  a  father,  a  perfect  right  to  cor- 
rect his  child. 

Tidswell,  for  the  prosecution,  contended  that,  although  a  father 
might  correct  his  child,  the  law  did  not  permit  him  to  use  a  weapon 
improper  for  the  purpose  of  correction.  He  cited  Reg.  v.  Hopley  (2 
F.  &  F.  201.) 

Martin,  B.  (after  having  consulted  with  Willes,  J.,  who  concurred 

in   his   opinion).     The  law  as   to  correction  has  reference  only  to  a 

child  capable  of  appreciating  correction,  and   not  to  an  infant   two 

years  and  a  half  old.     Although  a  slight  slap  may  be  lawfully  given  to 

an  infant  by  her  mother,  more  violent  treatment  of  an  infant  so  young 

by  her  father  would  not  be  justifiable ;  and  the  only  question  for  the 

jury  to  decide  is,  whether  the  child's  death  was  accelerated  or  caused 

by  the  blows  inflicted  by  the  prisoner. 

Guilty. 


SECTION   III. 

Prevention  of  Felony. 

EEX    V.   COMPTON. 
Assizes.     1347. 

[Reported  Liber  Assisarum,  97,  pi.  55.] 

H.  DE  CoMPTON  was  indicted,  «fec.,  that  he  feloniously  killed  H.  Vescy 
at  C.  on  a  certain  day  in  the  fourteenth  year  of  the  present  King,  and 
also  for  that  he  received  one  R.,  who  was  outlawed  for  felony,  know- 
ing, &c.,  for  which  he  was  now  arraigned. 

H.  said  that  said  H.  V.  died  in  the  ninth  year  of  the  present  King ; 
and  that  said  H.  V.  and  another  were  indicted  in  the  ninth  year  of  the 
present  King,  before  Sir  T.  de  Rokeby,  Sheriff  of  York,  of  divers  felo- 
nies, when  the  sheriff  assigned  the  said  J.  [H.?]  de  C.by  his  commission 
(which  he  exhibited  to  the  court)  to  arrest  and  take  the  said  H.  and 
the  other  thieves ;  and  the  said  H.  de  C  with  others  came  to  the  said 
place,  and  there  found  the  said  H.  and  the  other  thieves,  and  showed 
them  their  warrant,  which  they  had  to  arrest  them,  and  ordered  them 


SECT.  III.]  REGINA   V.   DADRON.  317 

to  surreiuler ;  and  they  would  not  surrender,  but  defended  themselves, 
and  killed  and  wounded  divers  persons,  and  in  this  fight  H.  was  killed. 
And  we  do  not  think  tiiat  our  Lord  the  King  ought  to  impeach  us  of 
his  death. 

TiioKi',  C.  J.  All  shall  be  found  out  l)y  the  jury.  (And  he  told  them 
all  that  he  had  said.)  Wherefore  we  ask  you  whether  II.  V.  died  in 
the  ninth  year  of  the  present  king  and  not  in  the  fourteenth,  as  the 
indictment  is,  and  if  there  was  no  other  H.  V.  whom  he  killed  in  the 
fourteenth  year,  and  also  if  he  might  have  taken  him  without  killing 
him,  so  that  he  killed  him  of  his  own  malice,  &c.,  and  if  you  And  that, 
speak  of  his  lauds  and  goods. 

The  jury  said  that  H.  had  gone  (as  he  said),  and  that  there  was  no 
other  n.  V.  than  that  one,  &c.,  and  that  he  could  not  have  taken  him 
in  another  wa}-. 

Tiioup.  Thoy  have  acquitted  you  of  this  charge,  and  we  acquit  you. 
And  I  say  well  to  you  that  when  a  man  kills  another  by  his  warrant 
he  maj'  well  avow  the  fact,  and  we  will  freely  acquit  him  without  wait- 
ing for  the  King's  pardon  by  his  chancellor  in  this  case.  And  in  many 
other  cases  a  man  may  kill  another  without  impeachment,  as  if  thieves 
come  to  rob  a  man,  or  to  commit  burglary  in  his  house,  he  may  safely 
kill  them,  if  he  cannot  take  them.  And  note,  how  it  was  with  a 
gaoler  who  came  to  the  gaol  with  a  hatchet  in  his  hand,  and  just  then 
the  prisoners  had  broken  their  irons,  and  were  all  ready  to  have  killed 
him,  and  they  wounded  him  sorely,  but  with  the  hatchet  in  his  hand 
he  killed  two,  and  then  escaped,  &c.  And  it  was  adjudged  in  this 
case  bj'  all  the  counsel  that  he  would  not  have  done  well  otherwise,  &c. 
Likewise  he  said  that  every  person  might  take  thieves  in  the  act  of 
larceny,  and  felons  in  the  act  of  felon}-,  and  if  the}'  would  not  sur- 
render peaceablv,  but  stood  on  their  defence,  or  fled,  in  such  case  he 
might  kill  them  without  blame,  &c. 


REGINA   y.  DADSON. 
Crown  Case  Reserved.    1850. 

[Reported  4  Cox  C.  C.  358.] 

The  prisoner  was  tried  and  convicted  before  Erle,  J.,  at  the  last 
Maidstone  Assizes,  but  the  learned  judge,  entertaining  some  doubt  as 
to  the  propriety  of  the  conviction,  reserved  the  following  case  :  — 

George  Dadson  was  indicted  for  shooting  at  ^yilliam  Waters,  with 
intent  to  do  him  grievous  bodily  harm.  It  appeared  that  he,  being  a 
constable,  was  employed  to  guard  a  copse,  from  which  wood  h.ad  been 
stolen^  and  for  this  purpose  carried  a  loaded  gun.  From  this  copse  he 
saw  the  prosecutor  come  out,  carrying  wood,  which  he  was  stealing, 
and  called  to  him  to  stop.    The  prosecutor  ran  away,  and  the  prisoner, 


318  ■  KEGINA   V.   MURPHY.  [CHAP.  IX. 

having  no  other  means  of  bringing  him  to  justice,  fired,  and  wounded 
him  in  the  leg.  These  were  the  facts  on  which  the  prisoner  acted.  It 
was  alleged  in  addition  that  Waters  was  actuall}"  committing  a  felon3", 
he  having  been  before  convicted  repeatedl}'  of  stealing  wood,  but  these 
convictions  were  unknown  to  the  prisoner,  nor  was  there  an}^  reason 
for  supposing  that  he  knew  the  difference  between  the  rules  of  law 
relating  to  felony  and  those  relating  to  less  offences.  I  told  the  jur}- 
that  shooting  with  intent  to  wound  amounted  to  the  felon}'  charged, 
unless  from  other  facts  there  was  a  justification  ;  and  that  neither  the 
belief  of  the  prisoner  that  it  was  his  duty  to  fire  if  he  could  not  other- 
wise apprehend  the  prosecutor,  nor  the  alleged  felon}^,  it  being  unknown 
to  him,  constituted  such  justification.  Upon  this  the  prisoner  was  con- 
victed of  felony,  and  let  out  on  his  recognizances  to  come  up  for  judgment, 
if  i-equired.  I  have  to  request  the  opinion  of  the  judges  whether  this 
conviction  was  right. 

[This  case  stood  for  argument  on  Wednesday,  November  20,  but  no 
counsel  were  instructed.  For  the  legal  distinction  adverted  to  in  the 
case  with  regard  to  the  apprehension  of  felons  and  misdemeanants  onl}', 
see  1  Hale,  481  •  4  Bl.  Com.  179  ;  Fost.  271 ;  R.  v.  Smith,  1  Russ.  on 
Cr.  546.]  Om\  adv.  vult. 

Pollock,  C.  B.,  delivered  the  judgment  of  the  court.  (After  stating 
the  facts  as  aboA'e.)  We  are  all  of  opinion  that  the  conviction  is  right. 
The  prosecutor  not  having  committed  a  felony  known  to  the  prisoner 
at  the  time  when  he  fired,  the  latter  was  not  justified  in  firing  at  the 
prosecutor  ;  and  having  no  justifiable  cause,  he  was  guilty  of  shooting 
at  the  prosecutor  with  intent  to  do  him  grievous  bodily  harm,  and  the 
conviction  is  right.  Conviction  affirmed. 


EEGINA   V.  MURPHY. 
Meath  Assizes.    1839. 

[Reported  1  Crawford  ^  Dix,  20.] 

The  prisoner  was  indicted  under  the  statute  7  Will.  IV.  &  1  Vict. 
c.  85,  for  that  a  certain  gun  then  and  there  loaded  with  gunpowder  and 
divers  leaden  shot,  which  said  gun  he  the  said  P.  M.,  in  both  his  hands, 
then  and  there  had  and  held,  at  and  against  one  Christopher  Hand,  then 
and  there  feloniously^,  unlawfull}',  and  maliciousl}'  did  shoot,  with  intent 
in  so  doing  thereb}-  then  and  there  the  said  C.  H.  to  disfigure,  to  disable, 
and  to  do  some  grievous  bodily  harm. 

It  appeared  that  on  the  da}'  in  question  the  prisoner,  who  was  a 
game-keeper  and  woodranger  of  Lord  Dunsan}',  and  armed  with  a 
fowling-piece,  detected  the  prosecutor  in  the  act  of  carrying  awa}'  from 
his  employer's  lands  a  bundle  of  sticks,  consisting  of  branches  severed 
from  the  gi'owing  timber  by  a  recent  storm ;  that  the  prosecutor  being 


SECT,  in.]  UNITED   STATES   V.   CL.VRK.  319 

apparently  Mboiit  to  pass  over  a  ditch  and  hedge  upon  the  same  lands, 
the  prisoner  cried  out  to  him,  "Have  you  no  other  way  of  going  hut 
breaking  the  hedge?"  that  the  prosecutor  made  no  reply,  but  instantly 
dropped  the  wood  and  leaped  the  ditch  ;  that  the  prisoner  thereupon 
said,  ''If  you  don't  stop  I  '11  fire  ;  "  that  the  prosecutor  still  going  on, 
the  prisoner  discharged  his  piece  and  wounded  the  prosecutor  in  the 
hca(i,  back,  and  arms.  When  the  prosecutor  felt  himself  wounded  he 
saitl  to  the  prisoner,  who  had  come  up  with  him,  "I  did  not  think  you 
would  have  done  it ;"  to  which  the  latter  replied,  "I  would  do  that  and 
worse  to  you." 

/['.  Gorman^  for  the  prisoner,  submitted  that,  under  the  circum- 
stances, he  (the  prisoner)  was  entitled  to  an  acquittal ;  that  he,  being 
the  woodranger  of  the  owner  of  the  soil,  had  an  equal  right  to  defend 
the  property  thereon ;  and  that,  having  detected  the  prisoner  in  the  act 
of  committing  a  felony,  by  carrying  off  the  dissevered  timber,  he  had 
made  use  of  the  only  means  in  his  power  for  the  purpose  of  arresting 
the  felon. 

Tkkell,  Q.  C,  for  the  Crown.    The  prosecutor  was  a  mere  trespasser. 

DonEJiTY,  C.  J.  He  was  something  more  than  a  trespasser  ;  there  is 
no  doubt  that  the  prosecutor,  in  carrying  away  the  branches,  previously 
dissevered  from  the  trees,  was  committing  a  felony,  and  the  prisoner 
•was  clearly  entitled  to  arrest  him  ;  but  in  discharging  his  gun  at  the 
prosecutor,  and  perilling  his  life,  the  prisoner  has  very  much  exceeded 
his  lawful  powers,  and  I  cannot  allow  it  to  go  abroad  that  it  is  lawful 
to  fire  upon  a  person  committing  trespa  and  larceny,  for  that  would 
be  punishing,  perhaps  with  death,  offences  for  which  the  law  has  pro- 
vided milder  penalties.  It  appears,  moreover,  that  the  expressions 
addressed  by  the  prisoner  to  the  prosecutor  had  reference  rather  to  the 
acts  of  trespass  than  the  felony.  Verdict,  Guilty.^ 


UNITED   STATP:S   v.   CLARK. 
U.  S.  Circuit  Coukt,  E.  Dist.  Michigan.     1887. 

\^Reported  31  Federal  Reporter,  710.] 

Bro^vn,  J.  In  view  of  the  fact  that  this  was  a  homicide  committed 
by  one  soldier,  in  the  performance  of  his  alleged  duty,  upon  another 
soldier,  within  a  military  reservation  of  the  United  States,  I  had  at  first 
some  doubt  whether  a  civil  court  could  take  cognizance  of  the  case  at 
all ;  but,  as  crimes  of  this  nature  have  repeatedly  been  made  the  subject 
of  inquiry  by  civil  tribunals,  I  have  come  to  the  conclusion  that  I  ought 
not  to  decline  to  hear  this  complaint.  Indeed,  it  is  dillicult  to  see  how 
I  could  refuse  to  do  so  without  abdicating  that  supremacy  of  the  civil 

1  See  ace.  Storey  v.  State,  71  Ala.  329.  —  Ed. 


320  UNITED   STATES   V.    CLARK.  [CHAP.  IX. 

power  which  is  a  fundamental  principle  of  the  Anglo-Saxor:  polit}'. 
While  there  is  no  statute  expressly- conferring  such  jurisdiction,  there 
is  a  clear  recognition  of  it  in  the  fiftj^-niuth  article  of  war,  which  pro- 
vides that  "  when  any  officer  or  soldier  is  accused  of  a  capital  crime, 
or  of  an}-  offence  against  the  person  or  propert}-  of  any  citizen  of  any 
of  tlie  United  States,  which  is  punishable  by  the  laws  of  the  land,  the 
commanding  officer,  and  the  officers  of  the  regiment,  troop,  battery, 
company,  or  detachment  to  which  the  person  so  accused  belongs,  are 
required  (except  in  time  of  war),  upon  application  duly  made  by  or  in 
behalf  of  the  party  injured,  to  use  their  utmost  endeavors  to  deliver 
him  over  to  the  civil  magistrate,  and  to  aid  the  officers  of  justice  in 
apprehending  him  and  securing  him,  in  order  to  bring  .him  to  trial." 
This  article  makes  no  exception  of  crimes  committed  by  one  soldier 
upon  another,  nor  of  cases  where  there  is  concurrent  jurisdiction  in  the 
military  courts.  Ty  tier,  in  his  work  upon  Military  Law,  sa3's  :  "The 
martial  or  military  law,  as  contained  in  the  mutiny  act  and  articles  i)f 
war,  does  in  no  respect  supersede  or  interfere  with  the  civil  or  munici- 
pal laws  of  the  realm.  .  .  .  Soldiers  are,  equally  with  all  other  classes  of 
citizens,  bound  to  the  same  strict  observance  of  the  laws  of  the  countrj', 
and  the  fulfilment  of  all  their  social  duties,  and  are  alike  amenable 
to  the  ordinar}'  civil  and  criminal  courts  of  the  country  for  all  offences 
against  those  laws,  and  breaches  of  those  duties." 

In  the  case  of  U.  S.  v.  Cornell,  2  Mason,  61,  91,  Mr.  Justice  Story 
took  cognizance  of  a  murder  committed  by  one  soldier  upon  another  in 
Fort  Adams,  Newport  harbor.  The  case  was  vigorously  coutested, 
and  the  point  was  made  that  the  State  courts  had  jurisdiction  of  the 
offence,  but  there  was  no  claim  that  there  was  nof  jurisdiction  in  some 
civil  tribunal.  A  like  case  was  that  of  a  murder  committed  in  Fort 
Pulaski,  at  the  mouth  of  the  Savannah  River,  and  tried  in  1872  before 
Mr.  Justice  Woods  and  Judge  Erskine.  U.  S.  v.  Carr,  1  Woods,  480. 
No  question  was  raised  as  to  the  jurisdiction.  The  subject  of  the  civil 
responsibility  of  the  arra_y  was  very  carefully  considered  by  Attornej'- 
General  Gushing,  in  Steiner's  Case,  6  Ops.  Atty.-Gen.  413,  and  the 
conclusion  reached  that  an  act  criminal  both  b}-  military  and  general 
law  is  subject  to  be  tried  either  by  a  military  or  civil  court,  and  that  a 
conviction  or  acquittal  by  the  civil  authorities  of  the  offence  against 
the  general  law  does  not  discharge  from  responsibility  for  the  military 
offence  involved  in  the  same  facts.  The  converse  of  this  proposition  is 
equall}'  true. 

The  character  of  the  act  involved  in  this  case  presents  a  more  seri- 
ous question.  The  material  facts  are  undisputed.  There  is  no  doubt 
that  the  deceased  was  killed  by  the  prisoner  under  the  performance 
of  a  supposed  obligation  to  prevent  his  escape  by  any  means  in 
his  power.  There  is  no  evidence  tliat  the  prisoner  fired  before  the 
necessity  for  his  doing  so  had  become  apparent.  Stone  was  called 
upon  several  times  to  halt,  with  a  hail  by  the  quartermaster  sergeant 
that  there  was  "  a  load  after  him."     Duff,  his  nearest  pursuer,  was  not 


SECT.  III.]  UNITED   STATES  V.   CLARK.  321 

gaining  upon  him,  and  in  another  half-minute  he  would  have  scaled  the 
two  fences  between  him  and  the  higliway,  and  would  probably  have 
been  lost  in  the  houses  that  lie  on  the  other  side  of  the  street.  A  court 
of  inquir}-,  called  for  the  purpose  of  fully  investigating  the  circum- 
stances, was  of  the  opinion  that  if  Clark  had  not  performed  iiis  duty 
as  elHciently  as  he  did,  by  firing  on  deceased,  he  certainly  would  have 
effected  his  escape ;  and  found  that  no  furtlier  action  was  necessary  in 
the  case.  The  prisoner  and  the  deceased  had  always  been  good  friends, 
and  it  is  at  least  doubtful  whether  Clark  recognized  him  at  the  time  of 
firing  the  fatal  shot.  The  prisoner  has  heretofore  borne  a  most  excellent 
reputation,  was  never  court-martialled  nor  punished,  and  was  pronounced 
by  all  the  witnesses  who  testified  upon  the  subject  to  be  an  exceptionally 
good  soldier.  There  is  not  the  slightest  reason  to  suppose  that  he  was 
not  acting  in  obedience  to  what  he  believed  to  be  his  duty  in  the 
premises.  There  was  some  conflicting  testimony  as  to  whether  he  was 
standing  or  kneeling  at  the  time  he  fired,  but  I  am  not  able  to  see  its 
raaterialit}'.  If  he  was  authorized  to  shoot  at  all,  he  was  at  liberty  to 
take  such  position  as  would  insure  the  most  accurate  aim,  whether  his 
object  was  to  hit  the  deceased  in  the  leg  or  in  the  bod}'.  Clark  saya 
that  he  aimed  low,  for  the  purpose  of  merely  disabling  him,  but,  owing 
to  a  sudden  descent  in  the  ground,  the  shot  took  effect  in  the  back 
instead  of  the  leg.  For  the  purpose  of  this  examination,  however,  I  am 
bound  to  presume  that  he  intended  to  kill,  as  a  man  is  always  presumed 
to  intend  the  natural  and  probable  consequences  of  his  acts.  The  case, 
then,  reduces  itself  to  the  naked  legal  proposition  whether  the  prisoner 
is  excused  in  law  in  killing  the  deceased. 

The  general  rule  is  well  settled,  by  elementary  writers  upon  criminal 
law,  that  an  officer  having  custody  of  a  person  charged  with  felon}'  may 
take  his  life,  if  it  becomes  absolutely  necessary  to  do  so  to  prevent  his 
escape ;  but  he  may  not  do  this  if  he  be  charged  simply  with  a  misde- 
meanor ;  the  theory  of  the  law  being  that  it  is  better  that  a  misdemean- 
ant escape  than  that  human  life  be  taken.  I  doubt,  however,  whether 
this  law  would  be  strictly  applicable  at  the  present  day.  Suppose,  for 
example,  a  person  were  arrested  for  petit  larceny,  which  is  a  felony  at 
the  common  law,  might  an  officer  under  any  circumstances  be  justified 
in  killing  him?  I  think  not.  The  punishment  is  altogether  too  dispro- 
portioned  to  the  magnitude  of  the  offence.  Perhaps,  under  the  statute 
of  this  state,  2  How.  St.  §  9-i30,  wherein  a  felony  is  "construed  to  mean 
an  offence  for  which  the  offender,  on  conviction,  shall  be  liable  by  law 
to  be  punished  by  death,  or  by  imprisonment  in  the  state  prison,"  the 
principle  might  still  be  applied.  If  this  statute  were  applicable  to  this 
case,  it  would  operate  as  a  justification,  since  Stone  had  been  convicted 
and  sentenced  to  hard  labor  in  a  military  prison.  Under  the  recent 
case  of  Bx  parte  Wilson,  114  U.  S.  417,  5  Sup.  Ct.  Rep.  935,  it  was 
adjudged  by  the  Supreme  Court,  upon  full  consideration,  that  a  crime 
punishable  by  imprisonment  for  a  term  of  years  at  hard  labor  was  aq 
"infamous  crime,"  within  the  meaning  of  the  Constitution. 

21 


3'^ 2  UNITED   STATES  V.   CLARK.  [CHAP.  IX. 

Manifestly,  however,  the  case  mast  be  determined  by  different  con- 
siiierations.  Stone  had  been  court-martialled  for  a  military  offence,  in 
which  there  is  no  distinction  between  felonies  and  misdemeanors.  His 
crime  was  one  wholly  unknown  to  the  common  law,  and  the  technical 
definitions  of  that  law  are  manifestly  inappropriate  to  cases  which  are 
not  contemplated  in  the  discussion  of  common-law  writers  upon  the  sub- 
ject. We  are  bound  to  take  a  broader  view,  and  to  measure  the  rights 
and  liabilities  of  the  prisoner  by  the  exigencies  of  the  military  service, 
and  the  circumstances  of  the  particular  case.  It  would  be  extremely 
unwise  for  the  civil  courts  to  lay  down  general  principles  of  law  which 
would  tend  to  impair  the  efficiency  of  the  military  arm,  or  which  would 
seem  to  justify  or  condone  conduct  prejudicial  to  good  order  and  mili- 
tary discipline.  An  army  is  a  necessity  —  perhaps  I  ought  to  say  an 
unfortunate  necessity  —  under  every  system  of  government,  and  no 
civilized  state  in  modern  times  has  been  able  to  dispense  with  one. 
To  insure  efficiency,  an  army  must  be,  to  a  certain  extent,  a  despotism. 
Each  officer,  from  the  general  to  the  corporal,  is  invested  with  an  arbi- 
trary power  over  those  beneath  him,  and  the  soldier  who  enlists  in  the 
army  waives,  in  some  particulars,  his  rights  as  a  civilian,  surrenders 
his  personal  liberty  during  the  term  of  his  enlistment,  and  consents  to 
come  and  go  at  the  will  of  his  superior  officers.  He  agrees  to  become 
amenable  to  the  military  courts,  to  be  disciplined  for  offences  unknown 
to  the  civil  law,  to  relinquish  his  right  of  trial  by  jury,  and  to  receive 
punishments  which,  to  the  civilian,  seem  out  of  all  proportion  to  the 
magnitude  of  the  offence. 

The  articles  of  war,  which  he  takes  an  oath,  upon  his  enlistment,  to 
observe,  are  in  fact  a  militar}'  code  of  Draconic  severit}',  and  authorize 
harsh  punishments  for  offences  which  seem  to  be  of  a  trivial  nature. 
Thus,  by  the  articles  of  war,  all  the  following  crimes  are  punishable  b}' 
death,  or  such  other  punishment  as  a  court-martial  may  direct :  strik- 
ing a  superior  officer ;  drawing  or  lifting  up  a  weapon,  or  offering  any 
violence  against  him  ;  or  disobeN'ing  any  lawful  command. ,  Article  21. 
Exciting  or  joining  in  any  mutiny  or  sedition.  Article  22.  Failing 
to  use  his  utmost  endeavors  to  suppress  such  mutin}'  or  sedition,  or 
faiUng  to  give  information  thereof  to  his  commanding  officer.  Article  23. 
A  sentinel  sleeping  upon  his  post  or  leaving  it  before  he  is  relieved. 
Article  39.  Occasioning  false  alarms  in  camp  or  quarters.  Article  41. 
Misbeliaving  himself  before  the  enemy,  running  away,  or  shamefull}' 
abandoning  any  post  which  he  is  commanded  to  defend  ;  speaking 
words  inducing  others  to  do  the  like  ;  casting  away  his  arms  or  ammu- 
nition, or  quitting  his  post  or  colors  to  plunder  or  pillage.  Article  42. 
Compelling  the  commander  of  any  post  to  surrender  it  to  the  enemy, 
or  to  abandon  it.  Article  43.  Making  known  the  watchword  to  any 
person  not  entitled  to  receive  it,  or  giving  the  watchword  different  from 
that  which  he  has  received.  Article  44.  Relieving  the  enemy  with 
mone}',  victuals,  or  ammunition,  or  harboring  or  protecting  an  enemy. 
Article  45.    Holding  correspondence  or  giving  intelligence  to  an  enemy. 


SECT.  III.]  UNITED    STATES   V.    CLARK.  323 

Article  AG.  Deserting  in  time  of  war.  Article  47,  Advising  or  per- 
suading another  to  desert  in  time  ol"  war.  Article  ol.  Doing  violence  to 
any  person  bringing  provisions  or  other  necessaries  to  camp  or  quarters 
of  troops  in  foreign  parts.  Article  5G.  Forcing  a  safeguard  in  a  foreign 
territory  or  during  a  rebellion.  Article  57.  iSome  of  these  articles  are 
applicable  only  to  a  state  of  war,  but  some  of  them  treat  of  offences 
which  may  equally  well  be  committed  in  time  of  peace.  Besides  these, 
there  are  a  number  of  minor  oJfences  punishable  as  a  court-martial  may 
direct,  and  a  general  and  very  sweeping  article  (No.  62)  providing  that 
all  crimes  not  capital,  and  all  disorders  and  neglects  to  the  prejudice  of 
good  order  and  military  discipline,  shall  be  justiciable  b}'  a  court-martial, 
and  punishable  at  the  discretion  of  the  court. 

Now,  while  the  punishment  in  Stone's  case  seems  to  the  civilian 
quite  disproportionate  to  the  character  of  his  offence,  as  charged  in 
the  specifications,  which  was  no  more  nor  less  than  the  utterance  of  a 
malicious  falsehood,  when  gauged  by  the  penalties  attached  by  Congress 
to  the  several  offences  contained  in  the  articles  of  war,  it  does  not  seem 
so  excessive  ;  at  any  rate,  it  was  the  lawful  judgment  of  a  court  having 
jurisdiction  of  his  case,  and  it  was  his  duty  to  abide  by  it,  or  pursue 
his  remedy  in  the  method  provided  by  law.  In  seeking  to  escape,  the 
deceased  was  undoubtedly  guilty  of  other  conduct  prejudicial  to  good 
order  and  military  discipline,  and  was  liable  to  such  further  punishment 
as  a  court-martial  might  inflict.  In  suffering  him  taescape,  the  prisoner 
became  amenable  to  article  69,  and,  failing  to  use  his  utmost  endeavor 
to  prevent  it,  was  himself  subject  to  such  punishment  as  a  court-martial 
might  direct.     Did  he  exceed  his  authority  in  using  his  musket  ? 

I  have  made  the  above  citations  from  the  military  code  to  show  that 
the  common-law  distinction  between  felonies  and  misdemeanors  is  of  no 
possible  service  in  gauging  the  duty  of  a  military  guard  with  respect  to 
a  soldier  in  the  act  of  escaping.  His  position  is  more  nearly  analogou.9 
to  that  of  an  armed  sentinel  stationed  upon  the  walls  of  a  penitentiary 
to  prevent  tlie  escape  of  convicts.  The  penitentiary  —  and  for  this 
purpose  we  may  use  the  house  of  correction  in  Detroit  as  an  example  — 
may  contain  convicted  murderers,  felons  of  every  grade,  as  well  as  others 
charged  with  vagrancy  or  simple  breaches  of  the  peace,  and  criminals 
of  all  descriptions  between  the  two.  If  the  guard  sees  one  of  those 
prisoners  scaling  the  wall,  and  there  be  no  other  means  of  arresting 
him,  may  he  not  fire  upon  him  without  stopping  to  inquire  whether  he  is 
a  felon  or  a  misdemeanant  ?  If  he  prove  to  be  a  felon,  he  will  be  fully 
justified  ;  if  he  prove  to  be  a  misdemeanant,  is  he  therefore  guilty  of 
murder?  There  are  undoubtedly  cases  where  a  person  who  has  no  mal- 
ice in  fact  may  be  charged  with  malice  in  law,  and  held  guilty  of  murder 
through  a  misapprehension  of  the  law.  Thus,  if  a  sheriff  charged  with 
the  execution  of  a  malefactor  by  hanging  should  carry  out  the  sentence 
by  shooting  or  beheading ;  or,  commanded  to  hang  upon  a  certain  day, 
should  hang  upon  another  day  ;  or  if  an  unauthorized  person  should 
execute  the  sentence,  —  it  would  probably  be  murder  at  common  law. 


324  UNITED   STATES   V.    CLABK.  [CHAP.  IX. 

But  these  cases  are  an  exception  to  the  general  rule,  that  actual  malice 
must  exist  to  justify  a  conviction  for  murder.  While  human  life  is 
sacred,  and  the  man  who  takes  it  is  held  strictly  accountable  for  his 
act,  a  reputable  citizen,  who  certainly  does  not  lose  his  character  as 
such  by  enlisting  in  the  army,  ought  not  to  be  branded  as  a  murderer 
upon  a  mere  technicality,  unless  such  technicality  be  so  clear  as  to 
admit  of  no  reasonable  doubt.  Thus,  if  a  sentinel  stationed  at  the  gate 
of  a  fort  should  wantonly  shoot  down  a  civilian  endeavoring  to  enter  in 
the  daytime,  or  an  officer  should  recklessly  slay  a  soldier  for  some  mis- 
conduct or  breach  of  discipline,  no  supposed  obligation  upon  his  part 
to  do  this  would  excuse  so  gross  an  outrage. 

In  this  connection  it  is  urged  by  the  defence  that  the  finding  of  the 
court  of  inquiry  acquitting  the  prisoner  of  all  blame  is  a  complete  bar 
to  this  prosecution.  I  do  not  so  regard  it.  If  the  civil  courts  have 
jurisdiction  of  murder,  notwithstanding  the  concurrent  jurisdiction  by 
court-martial  of  military  offences,  it  follows  logically  that  the  proceed- 
ings in  one  cannot  be  pleaded  as  a  bar  to  proceedings  in  the  other ; 
and  if  the  finding  of  such  court  should  conflict  with  the  well-recognized 
principles  of  the  civil  law,  I  should  be  compelled  to  disregard  it.  State 
V.  Rankin,  4  Cold.  145.  At  the  same  time  I  think  that  weight  should 
be  given,  and  in  a  case  of  this  kind  great  weight,  to  the  finding,  as  an 
expression  of  the  opinion  of  the  military  court  of  the  magnitude  of 
Stone's  offence,  and  of  the  necessity  of  using  a  musket  to  prevent  his 
escape.  I  am  the  more  impressed  with  this  view  from  the  difficulty  of 
applying  common  law  principles  to  a  case  of  this  description.  There  is 
a  singular  and  almost  total  absence  of  authority  upon  the  subject  of 
the  power  of  a  military  guard  in  time  of  peace.  But  considering  the 
nature  of  military  government,  and  the  necessity  of  maintaining  good 
order  and  discipline  in  a  camp,  I  should  be  loth  to  say  that  life  might 
not  be  taken  in  suppressing  conduct  prejudicial  to  such  discipline. 

In  charging  the  jury  in  U.  S.  v.  Carr,  1  Woods,  484,  Mr.  Justice 
Woods  instructed  them  to  "  inquire  whether,  at  the  moment  he  fired  his 
piece  at  the  deceased,  with  his  surroundings  at  that  time,  he  had  rea- 
sonable ground  to  believe,  and  did  believe,  that  the  killing  or  serious 
wounding  of  the  deceased  was  necessary  to  the  suppression  of  a  mutiny 
then  and  there  existing,  or  of  a  disorder  which  threatened  speedily  to 
ripen  into  a  mutiny.  If  he  had  reasonable  ground  so  to  believe,  and 
did  so  believe,  then  the  killing  was  not  unlawful.  .  .  .  But  it  must 
be  understood  that  the  law  will  not  require  an  officer  charged  with  the 
order  and  discipline  of  a  camp  or  fort  to  weigh  with  scrupulous  nicety 
the  amount  of  force  necessary  to  suppress  disoi'der.  The  exercise  of  a 
reasonable  discretion  is  all  that  is  required." 

So,  in  the  case  of  McCail  v.  McDowell,  1  Abb.  (U.  S.)  212,  218,  it  is 
said  that  "  except  in  a  plain  case  of  excess  of  authority,  where  at  first 
blush  it  is  apparent  and  palpable  to  the  commonest  understanding  that 
the  order  is  illegal,  I  cannot  but  think  that  the  law  should  excuse  the 
military  subordinate  when  acting  in  obedience  to  the  order  of  his  com- 


SECT.  III.]  UNITED   STATES   V.   CLARK.  325 

mander.  Otherwise  he  is  placed  in  the  dangerous  dilemma  of  being 
liable  in  damages  to  third  persons  for  obedience  to  an  order,  or  to  the 
loss  of  his  CfHnmission  and  disgrace  for  disobedience  thereto.  .  .  .  The 
first  duty  of  a  soldier  is  obedience,  and  witliout  this  there  can  be  neither 
discipline  nor  ellicienc}'  in  the  army.  If  every  subordinate  otficer  and 
soldier  were  at  liberty  to  question  the  legality  of  the  orders  of  the  com- 
mander, and  obey  them  or  not  as  he  may  consider  them  valid  or  invalid, 
the  camp  would  be  turned  into  a  debating  school,  where  the  precious 
moment  for  action  would  be  wasted  in  wordy  conflicts  between  the 
advocates  of  conflicting  opinions."  It  is  true  this  was  a  civil  case  for 
false  imprisonment,  and  these  observations  were  made  with  reference  to 
a  question  of  malice,  which  was  material  as  bearing  upon  the  plaintifl^s 
right  to  punitory  damages,  as  it  is  also  a  necessary  ingredient  in  the 
definition  of  murder. 

The  question  of  the  civil  rcsponsibilit}'  of  a  naval  oflRcer  (and  his 
criminal  responsibility  seems  to  be  the  same)  was  considered  by  the 
Supreme  Court  in  Wilkes  v.  Dinsman,  7  How.  89,  which  was  an  action 
of  trespass  against  Commodore  Wilkes  for  causing  the  plaintiff  to  be 
whipped  and  imprisoned  for  disobedience  of  orders,  near  the  Sandwich 
Islands.  In  discussing  the  responsibility  of  the  commanding  officer  of 
a  vessel  of  war,  Mr.  Justice  Woodbury  observed  :  "In  respect  to  those 
compulsor}-  duties,  whether  in  re-enlisting  or  detaining  on  board,  or  in 
punishing  or  imprisoning  on  shore,  while  arduously  endeavoring  to  per- 
form them  in  such  a  manner  as  might  advance  the  science  and  com- 
merce and  glory  of  his  country,  rather  than  his  own  personal  designs, 
a  public  oflficer,  invested  with  certain  discretionary'  powers,  never  has 
been,  and  never  should  be,  made  answerable  for  any  injury,  when 
acting  within  the  scope  of  his  authority,  and  not  influenced  by  malice, 
corruption,  or  cruelty.  .  .  .  The  officer,  being  intrusted  with  a  dis- 
cretion for  public  purposes,  is  not  to  be  punished  for  the  exercise  of  it, 
unless  it  is  first  proved  against  him,  either  that  he  exercised  the  power 
confided  to  him  in  cases  without  his  jurisdiction,  or  in  a  manner  not 
confided  to  him,  as,  with  malice,  cruelty,  or  wilful  oppression,  or,  in 
the  words  of  Lord  Mansfield,  that  he  exercised  it  as  if  '  the  heart  is 
wrong.'  In  short,  it  is  not  enough  to  show  that  he  committed  an  error 
in  judgment,  but  it  must  have  been  a  malicious  and  wilful  error." 

The  same  principle  was  applied  in  the  criminal  case  of  Riggs  v.  State, 
3  Cold.  85.  Riggs  was  a  private  soldier  who  had  been  convicted  of 
murder  in  killing  a  man  while  acting  under  the  orders  of  his  superior 
oflficer.  The  court  held  that  an  order  illegal  in  itself,  and  not  justifiable 
by  the  rules  and  usages  of  war,  so  that  a  man  of  ordinary  sense  and  un- 
derstanding would  know,  when  he  heard  it  read  or  given,  that  the  order 
was  illegal,  would  afford  the  private  no  protection  for  a  crime  under 
such  order ;  but  that  an  order  given  b}-  an  ofllicer  to  his  private  which 
does  not  expressly  and  clearly  show  on  its  face,  or  the  body  thereof, 
its  own  illegality,  the  soldier  would  be  bound  to  obey,  and  such  order 
would  be  a  protection  to  him. 


326  SELF-DEFENCE.  [CHAP.  IX. 

I  have  no  doubt  the  same  principle  would  apply  to  the  acts  of  a 
subordinate  officer,  performed  in  compliance  with  his  supposed  duty  as 
a  soldier ;  and  unless  the  act  were  manifestly  beyond  the  scope  of  his 
authority,  or,  in  the  words  used  in  the  above  case,  were  such  that  a  man 
of  ordinary  sense  and  understanding  would  know  that  it  was  illegal,  that 
it  would  be  a  protection  to  him,  if  he  acted  in  good  faith  and  without 
mahce.  As  there  is  no  reason  in  this  case  to  suppose  that  Clark  was 
not  doing  what  he  conceived  to  be  his  duty,  and  the  act  was  not  so 
clearly  illegal  that  a  reasonable  man  might  not  suppose  it  to  be  legal, — 
indeed,  I  incline  to  the  opinion  that  it  was  legal,  —  and  as  there  was  an 
entire  absence  of  malice,  I  think  he  ought  to  be  discharged. 

But,  even  if  this  case  were  decided  upon  common-law  principles,  the 
result  would  not  be  different.  By  the  statutes  of  the  State  in  which  the 
homicide  was  committed,  a  felony  is  defined  to  be  any  crime  punishable 
by  imprisonment  in  the  State's  prison.  Stone  had  been  convicted  of  a 
military  offence,  and  sentenced  to  hard  labor  in  the  military  prison  for 
two  years,  and,  so  far  as  the  analogies  of  the  common  law  are  applicable 
at  all,  he  must  be  considered,  in  a  case  of  this  kind,  as  having  been 
convicted  of  a  felony. 

It  may  be  said  that  it  is  a  question  for  a  jur}-,  in  each  case,  whether 
the  prisoner  was  justified  by  the  circumstances  in  making  use  of  his 
musket,  and  if  this  were  a  jury  trial  I  should  submit  that  question  to 
them  ;  but  as  I  am  bound  to  find  as  a  matter  of  fact  that  there  is  reasona- 
ble cause  to  believe  the  defendant  guilty,  not  merely  of  a  homicide,  but 
ot  SL  felonious  homicide,  and  as  I  would,  acting  in  another  capacity,  set 
aside  a  conviction,  if  a  verdict  of  guilty  were  rendered,  I  shall  assume 
the  responsibility  of  directing  his  discharge. 


SECTION  IV. 

Self-defence. 

Foster,  C.  L.  273.  Self-defence  naturally  falleth  under  the  head  of 
homicide  founded  in  necessity,  and  may  be  considered  in  two  different 
views.  It  is  either  that  sort  of  homicide  se  et  sua  defendendo,  which  is 
perfectly  innocent  and  justifiable,  or  that  which  is  in  some  measure 
blameable  and  barel}"  excusable.  The  want  of  attending  to  this  dis- 
tinction hath,  I  believe,  thrown  some  darkness  and  confusion  upon  this 
part  of  the  law. 

The  writers  on  the  Crown  Law,  who,  I  think,  have  not  treated  the 
subject  of  self-defence  with  due  precision,  do  not  in  terms  make  the 
distinction  I  am  aiming  at,  yet  all  agree  that  there  are  cases  in  which  a 
man  may,  without  retreating,  oppose  force  to  force,  even  to  the  death. 
This  I  call  justifiable  self-defence,  they  justifiable  homicide. 

They  likewise  agree  that  there  are  cases  in  which  the  defendant  can- 


SECT.  IV.]  SELF-DEFENCE.  327 

not  avail  liimself  of  the  pica  of  self-defence  without  showing  that  he 
retreated  as  far  a.s  he  could  with  safety,  and  then,  merely  for  ihe  pres- 
ervation of  his  own  life,  killed  the  assailant.  This  1  call  selfclefeiice 
culpable,  but  through  the  benignity  of  the  law  excusable. 

In  the  case  of  justifiable  self-defence  the  injured  party  may  repel  force 
by  force  in  defence  of  his  person,  habitation,  or  property,  against  one 
who  ujanifestly  intendeth  and  endeavoreth  by  vi<jlencc  or  surprise  to 
conunit  a  known  felony  upon  either.  In  these  cases  he  is  not  obliged 
to  retreat,  but  may  pursue  his  adversary  till  he  fuidelh  himself  out  of 
danger,  and  if  in  a  contlict  between  them  he  happencth  to  kill,  bucJi 
killing  is  justifiable. 

The  riglit  of  self-defence  in  these  cases  is  founded  in  the  law  of  nature, 
and  is  not,  nor  can  l)e,  sni)erseded  by  an}'  law  of  society.  For  ijcfore 
civil  societies  were  formed  (one  may  conceive  of  such  a  state  of  things, 
though  it  is  difficult  to  fix  the  period  when  civil  societies  were  formed), 
I  say  before  societies  were  formed  for  mutual  defence  and  preservation, 
the  right  of  self-defence  resided  in  individuals ;  it  could  not  reside  else- 
where ;  and  since  in  cases  of  necessit\',  individuals  incorporated  into 
society,  cannot  resort  for  protection  to  the  law  of  the  society,  that  law 
with  great  propriety  and  strict  justice  considereth  them,  as  still,  in  that 
instance,  under  the  protection  of  the  law  of  nature. 

I  will,  by  way  of  illustration,  state  a  few  cases,  which,  I  conceive, 
are  reducible  to  this  head  of  justifiable  self-defence. 

Where  a  known  felony  is  attempted  upon  the  person,  be  it  to  rob  or 
murder,  here  the  party  assaulted  may  repel  force  by  force ;  and  even 
his  servant  then  attendant  on  him,  or  an}'  other  person  present  may 
interpose  for  preventing  mischief;  and  if  death  ensueth,  the  party 
so  interposing  will  be  justified.  In  this  case  nature  and  social  duty 
co-operate. 

A  woman  in  defence  of  her  chastity  may  lawfully  kill  a  person  attempt- 
ing to  commit  a  rape  upon  her.  The  injury  intended  can  never  be  repaired 
or  forgotten  ;  and  nature,  to  render  the  sex  amial)le,  hath  implanted  in 
the  female  heart  a  quick  sense  of  honor,  the  pride  of  virtue,  which  kin- 
dleth  and  entlaraeth  at  every  such  instance  of  brutal  lust.  Here  the  law 
of  self-defence  plainly  coincideth  with  the  dictates  of  nature. 

An  attempt  is  made  to  commit  arson  or  burglary  in  the  habitation  ; 
the  owner,  or  any  part  of  his  family,  or  even  a  lodger  with  him  may 
lawfully  kill  the  assailants  for  preventing  the  mischief  intended.  Here 
likewise  nature  and  social  duty  co-operate. 

I  will  now  proceed  to  that  sort  of  self-defence  which  is  culpable  and 
through  the  benignity  of  the  law  excusable.  And  this  species  of  self- 
defence,  I  choose,  upon  the  authority  of  the  statute  of  Hen.  VHI.,  to 
distinguish  from  the  other  by  the  name  of  homicide  se  defendendo  upon 
chance-medley.  The  term  '>  chance-medley  "  hath  been  very  improperly 
applied  to  the  case  of  accidental  death,  and  in  vulgar  speech  we  gener- 
ally affix  that  single  idea  to  it.  But  the  ancient  legal  notion  of  homicide 
by  chance-medley  was  when  death  ensued  from  a  combat  between  the 


328  SELF-DEFENCE.  [CHAP.  IX. 

parties  upon  a  sudden  quarrel.  How,  upon  the  special  circumstances 
of  the  case,  the  species  of  homicide  se  defendendo  which  I  am  now 
upon  is  distinguishable  from  that  species  of  felonious  homicide  which 
we  call  manslaughter  will  be  presently-  considered. 

The  difference  between  justifiable  and  excusable  self-defence  appear- 
eth  to  me  to  be  plainly  supposed  and  pointed  out  b}'  the  statute  I  have 
just  mentioned ;  for,  after  reciting  that  it  had  been  doubted  whether  a 
person  killing  another  attempting  to  rob  or  murder  him  under  the  cir- 
cumstances there  mentioned  should  forfeit  goods  and  chattels,  ''As," 
proceedeth  the  statute,  "any  other  person  should  do  that  by  chance- 
medley  should  happen  to  kill  or  slay  any  other  person  in  his  or  their 
defence,"  it  enacteth  that  in  the  cases  first  mentioned  the  party  killing 
shall  forfeit  nothing,  but  shall  be  discharged  in  like  manner  as  if  he 
were  acquitted  of  the  death. 

He  who,  in  the  case  of  a  mutual  conflict,  would  excuse  himself  upon 
the  foot  of  self-defence,  must  show  that  before  a  mortal  stroke  given 
he  had  declined  an}'  farther  combat  and  retreated  as  far  as  he  could 
with  safety ;  and  also  that  he  killed  his  adversary  through  mere  neces- 
sity, and  to  avoid  immediate  death.  If  he  faileth  in  either  of  these 
circumstances  he  will  incur  the  penalties  of  manslaughter. 

The  authorities  I  shall  cite  will  serve  to  explain  these  principles,  and 
in  some  measure  fix  the  boundaries  between  the  cases  of  manslaughter 
and  excusable  self-defence. 

A.  being  assaulted  b}^  B.  returneth  the  blow,  and  a  fight  ensueth.  A. 
before  a  mortal  wound  given,  declineth  any  farther  conflict,  and  retreat- 
eth  as  far  as  he  can  with  safety,  and  then,  in  his  own  defence,  killeth 
B.  ;  this  is  excusable  self-defence  ;  though,  saith  Stanford,  A.  had  given 
several  blows  not  mortal  before  his  retreat. 

But  if  the  mortal  stroke  had  been  first  given,  it  would  have  been 
manslaughter. 

The  cases  here  put  suppose  that  the  first  assault  was  made  upon  the 
party  who  killed  in  his  own  defence.  But  as  in  the  case  of  manslaughter 
upon  sudden  provocations,  where  the  parties  fight  on  equal  terms,  all 
malice  apart,  it  raattereth  not  who  gave  the  first  blow ;  so,  in  this  case 
of  excusable  self-defence,  I  think  the  first  assault  in  a  sudden  aff"ray, 
all  malice  apart,  will  make  no  difference,  if  either  party  quitteth  the 
combat  and  retreateth  before  a  mortal  wound  be  given.  But  if  the  first 
assault  be  upon  malice,  which  must  be  collected  from  circumstances, 
and  the  assailant,  to  give  himself  some  color  for  putting  in  execution 
the  wicked  purposes  of  his  heart,  retreateth,  and  then  turneth  and  kill- 
eth, this  will  be  murder.  If  he  had  killed  without  retreating  it  would 
undoubtedly  have  been  so ;  and  the  craft  of  flying  rather  aggravateth 
than  excuseth,  as  it  is  a  fresh  indication  of  the  malitia  already  mentioned, 
the  heart  deliberately  bent  upon  mischief. 

The  other  circumstance  necessary  to  be  proved  in  a  plea  of  self- 
defence  is  that  the  fact  was  done  from  mere  necessity',  and  to  avoid 
immediate  death.    To  this  purpose  I  will  cite  a  case  adjudged  upon 


SECT.  IV.]  REGINA   V.    HEWLETT.  329 

great  deliberation.  It  was  the  case  of  one  Nailor,  which  came  on  at 
O.  B.  in  Apr.  17'>4,  before  Holt,  Tracy,  and  liury. 

The  prisoner  was  indicted  for  the  murder  of  his  brother,  and  the  case 
upon  evidence  appeared  to  be,  that  the  prisoner  on  the  night  the  fact 
was  committed  came  home  drunk.  Ilis  father  ordered  him  to  go  to 
bed,  which  he  refused  to  do ;  whereupon  a  scuflle  happened  betwixt  the 
father  and  son.  The  deceased,  who  was  then  in  bed,  hearing  the  dis- 
turbance got  up,  and  fell  upon  the  prisoner,  threw  him  down,  and  beat 
him  upon  the  ground  ;  and  there  kept  him  down,  so  that  he  could  not 
escape  nor  avoid  the  blows  ;  and  as  they  were  so  striving  together  the 
prisoner  gave  the  deceased  a  wound  with  a  penknife  ;  of  which  wound 
he  died. 

The  judges  present  doubted,  whether  this  was  manslaughter  or  $e 
defe?idendo,  and  a  special  verdict  was  found  to  the  effect  before  set 
forth. 

After  Michaelmas  term,  at  a  conference  of  all  the  judges  of  England, 
it  was  unanimously  holden  to  be  manslaughter  ;  for  there  did  not  appear 
to  be  any  inevitable  necessity  so  as  to  excuse  the  killing  in  this  manner. 


ANONYMOUS. 

[Reported  Kelyng,  58.] 

If  a.  hath  malice  against  B.  and  meeteth  him  and  striketh  him,  and 
then  13.  draweth  at  A.,  and  A.  flyeth  back  until  he  come  to  a  wall,  and 
then  kills  B.,  this  is  murder,  notwithstanding  his  flying  to  the  wall ;  for 
the  craft  of  flying  shall  not  excuse  the  malice  which  he  had,  nor  shall 
any  such  device  to  wreak  his  malice  on  another,  and  think  to  be  excused 
by  law,  avail  him  anything,  but  in  such  case  the  malice  is  enquirable, 
and  if  that  be  found  by  the  jur}^  then  his  flight  is  so  far  from  excusing 
the  crime,  that  it  aggravates  it. 


r' 


REGINA  V.   HEWLETT. 
Bristol  Assizes.     1858. 

[Reported  1  Foster  and  Finlason,  91.] 

Wounding  with  intent.  The  prisoner  was  indicted  for  wounding 
with  intent  to  do  grievous  bodily  harm  to  the  prosecutor.  It  appeared 
that  the  prisoner,  with  a  knife,  struck  at  one  Withy.  The  prosecutor 
interfered  and  caught  the  blow  intended  for  Withy  on  his  arm. 

Cbowder,  J.     This  will  not  sustain  the  charge  of  wounding  with 


330  SHORTER   V.   PEOPLE.  [CHAP.  IX 

intent  to  do  grievous  bodilj'  harm  to  the  prosecutor,  but  he  may  be 
convicted  of  unlawfully  wounding. 

It  appeared  that  the  prosecutor,  Withj'  and  two  women,  who  had 
been  drinking  together,  met  the  prisoner  at  midnight  on  the  highwa}'. 
Some  words  passed  between  them,  when  Withy  struck  the  prisoner. 
The  prisoner  then  made  the  blow,  which  was  the  subject  of  the  charge. 
It  was  contended  for  him  that,  under  the  circumstances,  he  was  justi- 
fied in  doing  so. 

Crowdek,  J.  (to  the  jury).  Unless  the  prisoner  apprehended  rob- 
bery or  some  similar  offence,  or  danger  to  life  or  serious  bodil}-  danger 
(not  simplj'  being  knocked  down),  he  would  not  be  justified  in  using 
tlie  knife  in  self-defence. 

Not  guilty. 


SHORTER  V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1849. 

[Reported  2  Comstock,  193.] 

Henry  Shorter,  a  negro,  was  indicted  for  the  murder  of  Stephen  C. 
Brush,  and  tried  at  the  Erie  County  Oyer  and  Terminer  in  November, 
1848.^ 

The  evidence  having  closed,  Justice  Hoyt,  presiding  at  the  trial, 
proceeded  to  charge  the  jui'y  at  large  upon  the  case,  and  having  done 
so,  the  counsel  for  the  prisoner  requested  the  court  to  charge  that  if 
the  deceased  struck  the  first  blow,  and  if  there  was  reasonable  ground 
to  apprehend  a  design  on  the  part  of  the  deceased  to  do  the  prisoner 
some  great  personal  injury,  and  the  prisoner  believed  that  there  was 
imminent  danger  of  such  design  being  accomplished,  it  was  a  case  of 
justifiable  homicide,  although  he  might  be  mistaken  in  such  belief;  and 
that  the  question  was  not  whether  such  danger  existed,  but  whether 
the  prisoner  believed  it  to  exist.  The  court  refused  so  to  charge,  but 
on  the  contrar}^  charged  that  to  render  the  killing  justifiable  the  jury 
should  be  satisfied  that  there  was  in  fact  imminent  danger  that  the 
deceased  would  commit  some  great  personal  injury  upon  the  prisoner. 
The  prisoner's  counsel  excepted  to  this  part  of  the  charge  and  to  the 
refusal  to  charge  as  requested.  The  jury  found  the  prisoner  guilty  of 
murder.  A  bill  of  exceptions  was  made  and  the  case  removed  by  cer- 
tiorari into  the  Supreme  Court,  where  a  new  trial  was  refused.  The 
prisoner  brought  error  to  this  court. 

Bronson,  J.  When  one  who  is  without  fault  himself  is  attacked 
b}-  another  in  such  a  manner  or  under  such  circumstances  as  to  furnish 
reasonable  ground  for  apprehending  a  design  to  take  away  his  life,  or 
do  him  some  great  bodily  harm,  and  there  is  reasonable  ground  for 

*  The  evideuce,  arguments,  and  part  of  the  opinion  are  omitted. 


SECT.  IV.]  SHORTER   V.    PEOPLE.  331 

believing  the  danger  imminent  that  such  design  will  be  accomplished, 
I  think  he  may  safely  act  upon  api)earances,  and  kill  the  assailant,  if 
tliat  be  necessary  to  avoid  the  ai)i)rohended  danger ;  and  the  killing 
will  be  justifiable,  although  it  may  afterwards  turn  out  tliat  the  appear- 
ances  were  false,  and  there  was  in  fact  neither  design  to  do  him 
serious  injury,  nor  danger  that  it  would  be  done.  He  must  decide  at 
his  peril  upon  the  force  of  the  circumstances  in  which  he  is  placed,  for 
that  is  a  matter  which  will  be  subject  to  judicial  review.  But  he  will 
not  act  at  the  peril  of  making  that  guilt,  if  appearances  prove  false, 
which  would  be  innocence  had  they  proved  true.  I  cannot  better 
illustrate  my  meaning  than  by  taking  the  case  put  by  Judge,  afterwards 
Chief  Justice  Parker,  of  Massachusetts,  on  the  trial  of  Thomas  O. 
Selfridge.  "  A.  in  the  peaceable  pursuit  of  his  affairs  sees  B.  walking 
rapidly  towards  him  with  an  outstretched  arm  and  a  pistol  in  his  hand, 
and  using  violent  menaces  against  his  life  as  he  advances.  Having 
approached  near  enough  in  the  same  attitude,  A.  who  has  a  club  in 
his  hand,  strikes  B.  over  the  head,  before,  or  at  the  instant  the  pistol 
is  discharged  ;  and  of  the  wound  B.  dies.  It  turns  out  that  the  pistol 
was  loaded  with  powder  only,  and  that  the  real  design  of  B.  was  only 
to  terrify  A."  Upon  this  case  the  judge  inquires,  "  Will  any  reasonable 
man  say  that  A.  is  more  criminal  than  he  would  have  been  if  there 
had  been  a  bullet  in  the  pistol  ?  Those  who  hold  such  doctrine  must 
require  that  a  man  so  attacked  must,  before  he  strikes  the  assailant, 
stop  and  ascertain  how  the  pistol  was  loaded,  —  a  doctrine  which  would 
entirely  take  away  the  right  of  self  defence.  And  when  it  is  considered 
that  the  jury  who  try  the  cause,  and  not  the  party  killing,  are  to  judge 
of  the  reasonable  grounds  of  his  apprehension^  no  danger  can  be  sup- 
posed to  flow  from  this  principle."  The  judge  had  before  instructed 
the  jury  that,  "  when  from  the  nature  of  the  attack  there  is  reasonable 
ground  to  believe  that  there  is  a  design  to  destroy  his  life,  or  commit 
any  felony  upon  his  person,  the  killing  of  the  assailant  will  be  excus- 
able homicide,  although  it  should  afterwards  appear  that  no  felony  was 
intended."  Selfridge's  Trial,  p.  160;  1  Russ.  on  Crime,  699,  ed.  of 
'24;  p.  485,  note,  ed.  of  '36.  To  this  doctrine  I  fully  subscribe.  A 
different  rule  would  lay  too  heavy  a  burden  upon  poor  humanity. 

I  have  stated  the  case  of  Selfridge  the  more  fully,  because  it  is  not 
only  an  authority  in  point,  but  it  is  one  which  the  revisers  professed 
to  follow  in  framing  our  statute  touching  this  question. 

I  shall  not  stop  to  consider  the  common  law  distinctions  between 
justifiable  and  excusable  homicide,  because  our  statute  has  placed  kill- 
ing in  self  defence  under  the  head  of  justifiable  homicide.     2  R.  S.  (560, 

8.3. 

The  Massachusetts  ease  laj's  down  no  new  doctrine.  The  same 
principle  was  acted  on  in  Levett's  Case.^  Foster  (Crown  Law,  p. 
299)  says  of  this  case,  "  Possibly  it  might  have  been  better  ruled  man- 

^  The  learned  judge  here  stated  Levett's  Case,  anit.  —  Ed. 


332  SHORTER  V.   PEOPLE.  [CHAP.  IX. 

Blaughter  at  common  law,  due  circumspection  not  having  been  used." 
I  do  not  understand  liim  as  questioning  the  principle  of  the  decision, 
but  as  only  expressing  a  doubt  whether  the  principle  was  properly 
applied.  He  calls  it  nothing  more  than  a  case  of  manslaughter,  when, 
if  a  man  may  not  act  upon  appearances,  it  was  a  plain  case  of  murder. 
So  far  as  I  have  observed,  no  other  writer  upon  criminal  law  has  ques- 
tioned, in  any  degree,  the  decision  in  Levett's  Case ;  and  most  of  them 
have  fully  approved  it.  East,  in  his  Pleas  of  the  Crown  (vol.  i.  p. 
274,  375),  has  done  so.  Hale  (1  P.  C.  42,  474)  mentions  it  among 
cases  where  ignorance  of  the  fact  will  excuse  from  all  blame.  Haw- 
kins (1  P.  C.  84,  Curwood's  ed.)  says  the  killing  had  not  the  appear- 
ance of  a  fault.  Russell  (on  Crimes,  vol.  i.  p.  550,  ed.  of  1836) 
approves  the  decision,  which  he  introduces  with  the  remark  that 
"  important  considerations  will  arise  in  cases  of  this  kind  [he  was 
speaking  of  homicide  in  defence  of  one's  person,  habitation,  or  prop- 
erty] as  to  the  grounds  which  the  partj'  killing  had  for  supposing  that 
the  person  slain  had  a  felonious  design  against  him  ;  more  especiall}' 
where  it  afterwards  appears  that  no  such  design  existed."  Roscoe, 
(Crim.  Ev.  p.  639)  sa3's,  "It  is  not  essential  that  an  actual  felony 
should  be  about  to  be  committed  in  order  to  justifj*  the  killing.  If 
the  circumstances  are  such  as  that,  after  all  reasonable  caution,  the 
party  suspects  that  the  felony  is  about  to  be  immediatelj'  committed, 
he  will  be  justifled."  And  he  then  gives  Levett's  Case  as  an  example. 
The  case  of  Sir  WDliam  Hawksworth,  who,  through  his  own  fault, 
was  shot  b}^  the  keeper  of  his  park,  who  took  him  for  a  stranger  who 
had  come  to  destroj'  the  deer,  went  upon  the  same  principle.  1  Hale's 
P.  C.  40 ;  1  East,  P.  C.  275 ;  1  Russ.  on  Cr.  549.  Other  cases  are 
put  in  the  books  where  the  killing  will  be  justified  by  appearances, 
though  they  afterwards  prove  false.  A  general,  to  trj'  the  vigilance  or 
courage  of  his  sentinel,  comes  upon  the  sentinel  in  the  night  in  the 
posture  of  an  enemy,  and  is  killed.  There  the  ignorance  of  the  sen- 
tinel that  it  was  his  general,  and  not  an  enemy,  will  justify  the  killing. 
1  Hale's  P.  C.  42 ;  1  East,  P.  C.  275  ;  1  Russ.  540.  The  case  men- 
tioned by  Lord  Hale,  which  was  before  him  at  Peterborough,  where  a 
servant  killed  his  master,  supposing  he  was  shooting  at  deer  in  the 
corn  in  obedience  to  his  master's  orders,  belongs  to  the  same  class. 
1  Hale's  P.  C.  40,  476 ;  1  Russ.  540.  In  Rampton's  Case  (Kelyng 
Rep.  41)  the  defendant  killed  his  wife  with  a  pistol  which  he  had 
found  in  the  street,  after  ascertaining,  as  he  supposed,  by  a  trial  with 
the  ramrod,  that  it  was  not  loaded,  though  in  fact  it  was  charged  with 
two  bullets.  This  was  adjudged  to  l>e  manslaughter,  and  not  merel}' 
misadventure.  Foster  (Crown  Law,  263,  4)  calls  this  a  hard  case, 
and  thinks  the  man  should  have  been  wholly  acquitted,  on  the  ground 
that  he  exercised  due  caution,  —  the  utmost  caution  not  being  neces- 
sary in  such  cases.  But  if  the  decision  was  right,  as  I  am  inclined  to 
think  it  was,  for  the  want  of  proper  caution,  still  the  case  goes  on  the 
ground  that  the  degree  of  guilt  may  be  affected  by  appearances  which 


O  'J  'i 

SECT.  IV.]  SHORTER  V.   PEOPLE.  '^'^'^ 

afterwards  prove  false ;  for  if  he  had  not  tried  the  pistol,  it  would 
have  been  murder.  Foster  (p.  2G5)  mentions  a  case  which  was  tried 
before  him,  where  the  prisoner  had  shot  his  wife  witli  a  gun,  which  he 
supposed  was  not  loaded.  The  judge,  being  of  opinion  that  the  pris- 
oner had  reasonable  ground  to  believe  that  the  gun  was  not  loaded, 
directed  the  jury,  that  if  they  were  of  the  same  opinion,  they  should 
acquit  the  prisoner;  and  he  was  acquitted.  In  Meade's  Case  (1 
Lewin's  Cr.  Cas.  184)  the  prisoner  had  killed  with  a  pistol  one  of  a 
great  number  of  persons  who  came  about  his  house  in  the  night  time, 
singing  songs  of  menace,  and  using  violent  language.  Holroyd,  J., 
told  the  jury  that  if  there  was  nothing  but  the  song,  and  no  appear- 
ance of  violence,  if  they  believed  there  was  no  reasonable  ground  for 
apprehending  danger,  the  kilUng  was  murder.  And  in  The  People 
V.  Rector  (19  Wend.  569)  Cowen,  J.,  said  alarm  on  tlie  part  of 
the  prisoner.  OJi  apparent  though  unreal  grounds,  was  pertinent  to 
the  issue.  In  Tiie  U.  S.  v.  Wiltberger  (3  Wash.  C.  C.  515,  521)  the 
judge  told  the  jury  that,  for  the  purpose  of  justifying  the  killing,  the 
intent  of  the  deceased  to  commit  a  felony  must  be  apparent,  which 
would  be  sufficient,  although  it  should  afterwards  turn  out  that  the 
real  intention  was  less  criminal,  or  even  innocent.  He  afterwards 
added  that  the  danger  must  be  imminent,  —  meaning,  undoubtedly, 
that  it  must  wear  that  appearance.  The  State  v.  Wells  (1  Coxe  N.  J. 
Rep.  424)  is  entirely  consistent  with  this  doctrine.  The  Supreme 
Court  of  Tennessee  has  gone  still  further,  and  held  that  one  who  kills 
another,  believing  himself  in  danger  of  great  bodily  harm,  will  be  jus- 
tified, although  he  acted  from  cowardice,  and  without  any  sufficient 
ground,  in  the  appearances,  for  the  killing.  Grainger  v.  The  State, 
5  Yerger,  459.  This  was,  I  think,  going  too  far.  It  is  not  enough 
that  the  party  believed  himself  in  danger,  unless  the  facts  and  circum- 
stances were  such  that  the  jury  can  say  he  had  reasonable  grounds  for 
his  belief. 

We  have  been  referred  to  two  cases  where  it  was  said,  in  substance, 
that  the  killing  must  be  necessary :  Regina  v.  Smith,  8  Car.  &  Paj'. 
IGO,  and  Regina  v.  Bull,  9  id.  22;  and  other  authorities  to  the  same 
effect  might  have  been  cited.  The  life  of  a  human  being  must  not  be 
taken  upon  slight  grounds  ;  there  must  be  a  necessity,  either  actual  or 
apparent,  for  the  killing,  or  it  cannot  be  justified.  That,  I  think,  is 
all  that  was  meant  by  such  remarks  as  have  been  mentioned.  The 
unqualified  language  that  the  killing  must  be  necessary  has,  I  think, 
never  been  used  when  attention  was  directed  to  the  question  whether 
the  accused  might  not  safely  act  upon  the  facts  and  circumstances  as 
they  were  presented  at  the  time.  I  have  met  with  no  authority  for 
saying,  that  a  homicide  which  would  be  justifiable  had  appearances 
proved  true,  will  be  criminal  when  they  prove  false. 


334  STOPFER  V.   STATE.  [CHAP.  IX. 

STOFFER  V.   STATE. 
Supreme  Court  of  Ohio.     1864. 

[Reported  15  Ohio  State,  47.] 

Ranney,  J.^  From  the  bill  of  exceptions  it  appears  that,  after  the 
state  had  given  evidence  tending  to  prove  that  the  plaintiff  made  an 
assault  upon  Webb  in  the  street,  with  the  intent  to  murder  him  with  a 
knife,  and  that  in  the  conflict  which  ensued,  Webb  was  killed  by  him, 
the  plaintiff  in  error  gave  evidence  tending  to  prove  that  he  desisted 
from  the  conflict,  declined  further  combat,  and  retreated  rapidly  a  dis- 
tance of  one  hundred  and  fifty  feet,  and  took  refuge  in  the  house  of  a 
stranger,  where  he  shut  and  held  the  door ;  that  Webb,  his  brother,  and 
one  Dingman  immediately  pursued,  throwing  stones  at  him,  and  crying 
'^  Kill  him  !  "  as  he  retreated,  and,  forcibly  opening  the  door,  they  entered 
the  house  and  assaulted  him,  and  in  the  conflict  which  immediately 
ensued,  Webb  was  killed. 

Upon  this  state  of  the  evidence,  counsel  for  the  plaintiff  in  error 
requested  the  court  to  instruct  the  jury  that  the  killing  of  Webb  would 
be  excusable,  although  the  accused  should  have  made  the  assault  upon 
him  with  the  malicious  intent  of  killing  him,  if  the  jury  should  find  that, 
before  Webb  had  received  any  injur}',  the  accused  desisted  from  the 
conflict,  and  in  good  faith  declined  further  combat,  and  retreated  to  a 
place  which  he  might  reasonably  regard  as  a  place  of  security,  and  that 
Webb  and  those  in  concert  with  him,  immediately  pursued  and  forcibly 
entered  such  place,  and  there  made  an  assault  upon  the  accused,  in  such 
manner  as  to  warrant  him  in  believing  that  his  life  was  in  danger  at  the 
hands  of  Webb,  and  without  deliberation  or  mahce,  and  to  save  his 
own  life,  he  took  that  of  Webb. 

This  instruction  the  court  refused  to  give,  but,  in  substance,  charged 
the  jury  that,  under  such  circumstances,  the  accused  would  be  guilty 
of  manslaughter,  provided  they  "  should  regard  the  conduct  of  Webb, 
from  the  commencement  of  the  conflict  in  the  street  to  the  time  of  the 
conflict  in  the  house,  as  continuous." 

The  difference  between  the  instruction  asked  and  that  given  is  easily 
appreciated.  The  one  makes  the  conduct  of  the  accused  in  declining, 
in  good  faith,  further  conflict,  and  retreating  to  a  place  of  supposed 
security  from  the  attacks  of  Webb,  decisive  of  his  right  to  defend  him- 
self there,  when  afterward  assaulted  by  Webb  and  those  in  concert 
with  him,  and,  if  necessary  to  save  his  own  life,  without  malice  or  pre- 
meditation to  take  that  of  Webb :  while  the  other  makes  the  conduct 
of  Webb  the  test  whether  the  conflict  had  so  far  terminated  as  to  restore 
the  accused  to  his  right  of  self-defence,  and  denies  him  this  right,  if  the 
conduct  of  Webb,  from  the  conflict  in  the  street  to  that  in  the  house, 

"^  Part  of  the  case,  not  involving  a  question  of  justification,  is  omitted.  | 


SECT.  IV.]  STOPFER   V.   STATE.  ^^35 

was  to  be  rt-gardod  as  conlinuous.  We  are  not  permitted  to  regard 
this  retreat  of  tbe  accused,  as  either  colorable,  or  made  to  gain  aa 
advantage,  with  a  view  of  renewing  the  assault  upon  Webb.  The  in- 
strueliuii  lequi-sted  assumed  tliut  it  niusl  iiavu  been  made  with  the  bo/ia 
fide  purpose  of  al»andoning  the  conlliL-t ;  and  in  liie  instruction  given, 
the  jury  were  charged  that  if  the  attack  upon  Webb  in  the  street  was 
murderous,  the  fact  that  the  accused  "  repented  and  fled,  .  .  .  intend- 
ing to  (piit  the  combat,  and  abandoning  all  murderous  purpose,"  would 
have  no  further  elfect  than  to  mitigate  the  crime  to  manslaughter. 

Upon  the  precise  question  made  in  this  case,  very  little  light  is  thrown 
by  actual  adjudications  ;  and  it  is  not  to  be  denied  that  some  dill'erence 
of  opinion  has  obUiined  among  elementary  writers  upon  criminal  law. 
The  learned  and  humane  Sir  Matthew  Hale  has  expressed  an  opinion 
ni)on  the  very  point,  in  accoidance  witli  the  instruction  requested  in  the 
court  below.  He  says:  ''  Suppose  tliat  A.  by  malice  makes  a  sudden 
assault  upon  B.,  who  strikes  again,  and  pursuing  hard  upon  A.,  A. 
letreats  to  the  wall,  and,  in  saving  his  own  life  kills  B. ;  some  have 
held  this  to  be  murder,  and  not  se  defendendt),  because  A.  gave  the  first 
assault.  But  Mr.  Dalton  thinketh  it  to  be  se  defendendo,  though  A. 
made  the  first  assault,  either  with  or  without  malice,  and  then  retreated. 
It  seems  to  me,  that  if  A.  did  retreat  to  the  wall  upon  a  real  intent  to 
save  his  life,  and  then  merely  in  his  own  defence  killed  B.,  that  it  is  se 
dt'femiendo,  and  with  this  agrees  Stamford's  P.  C.  lib.  1,  c.  7,  fol,  15a. 
But  if  on  the  other  side.  A.,  knowing  his  advantage  of  strength,  or  skill, 
or  weapon,  retreated  to  the  wall  merely  as  a  design  to  protect  himself, 
under  the  shelter  of  the  law,  as  in  his  own  defence,  but  really  intending 
to  kill  B.,  then  it  is  murder  or  manslaughter,  as  the  circumstance  of 
the  case  requires."     1  Hale's  P.  C.  479,  480. 

Sergeant  Hawkins,  however,  thinks  this  opinion  too  favorable,  and 
insists  that  the  one  who  gives  the  first  blow  cannot  be  permitted  to 
kill  the  other,  even  after  retreating  to  the  wall ;  because  the  necessity 
to  which  he  is  at  last  reduced  was  brought  upon  himself.  1  Hawk. 
P.  C.  87. 

Later  English  writers  have  generally  contented  themselves  with  stat- 
ing the  opposing  opinions  of  these  eminent  authors,  without  adding 
anything  material  upon  the  subject.  4  Bl.  Cora.  186  ;  1  Russ.  on 
Crimes,  662. 

In  our  own  country,  Mr.  Bishop,  in  his  work  on  criminal  law,  has 
examined  the  whole  subject  with  le.'vrniiig  and  ability,  and  coinciding, 
as  we  understand  him,  in  the  opinion  expressed  by  Lord  Hale,  he  thus 
expresses  his  own  conclusion:  "The  space  for  repentance  is  always 
left  open.  And  when  the  combatant  does  in  good  faith  withdraw  as  far 
as  he  can,  really  intending  to  abandon  the  conflict  and  not  merely  to 
gain  fresh  strength  or  some  new  advantage  for  an  attack,  but  the  other 
will  pursue  him,  then,  if  taking  life  becomes  inevitable  to  save  life,  he 
is  justified."     2  Bishop  on  Crim.  Law,  s.  556. 

But  if  the  question  cannot  be  said  to  be  settled  upon  authority,  we 


336  STOPFER  V.   STATE.  [CHAP.  IX. 

think  its  solution  upon  principle  very  obvious,  in  the  light  of  doctrines 
upon  which  all  are  agreed.  It  is  very  certain  that  while  the  party  who 
first  commences  a  malicious  assault  continues  in  the  combat,  and  does 
not  put  into  exercise  the  duty  of  withdrawing  in  good  faith  from  the 
place,  although  he  may  be  so  fiercely  pressed  that  he  cannot  retreat,  or 
is  thrown  upon  the  ground  or  driven  to  the  wall,  he  cannot  justify 
taking  the  life  of  his  adversary,  however  necessary  it  may  be  to  save 
his  own  ;  and  must  be  deemed  to  have  brought  upon  himself  the  neces- 
sity of  killing  his  fellow-man.  "  For  otherwise,"  as  said  by  Ch.  J. 
Hale,  "  we  should  have  all  cases  of  murder  or  manslaughter,  by  way 
of  interpretation,  turned  into  se  defendendo."     1  Hale,  P.  C.  482. 

There  is  every  reason  for  saying  that  the  conduct  of  the  accused, 
relied  upon  to  sustain  such  a  defence,  must  have  been  so  marked,  in 
the  matter  of  time,  place,  and  circumstance,  as  not  only  clearly  to 
evince  the  withdrawal  of  the  accused,  in  good  faith,  from  the  combat, 
but  also  such  as  fairly  to  advise  liis  adversary  that  his  danger  had 
passed,  and  to  make  his  conduct  thereafter,  the  pursuit  of  vengeance, 
rather  than  measures  taken  to  repel  the  original  assault.  But  when  this 
is  made  to  appear,  we  know  of  no  principle,  however  criminal  the  pre- 
vious conduct  of  the  accused  may  have  been,  which  allows  him  to  be 
hunted  down  and  his  life  put  in  jeopardy,  and  denies  him  the  right  to 
act  upon  that  instinct  of  self-preservation  which  spontaneously  arises 
alike  in  the  bosoms  of  the  just  and  the  unjust.  There  is  no  ground  for 
saying  that  this  right  is  forfeited  by  previous  misconduct ;  nor  did  the 
court  below  proceed  upon  any  such  idea,  since  the  jury  were  charged, 
that  if  the  conflict  which  ensued  upon  the  first  assault  had  ended,  and 
a  new  one  was  made  by  Webb  and  his  associates  in  the  house,  the 
accused,  under  reasonable  apprehension  of  loss  of  life  or  great  bodily 
harm,  would  be  justified  in  taking  the  life  of  his  assailant.  The  error 
of  the  court  consisted  in  supposing  that  whatever  might  be  done  by  the 
accused  to  withdraw  himself  from  the  contest,  the  conflict  would  never 
end  so  long  as  Webb  made  continuous  eflforts  to  prolong  it.  If  this  is 
a  sound  view  of  the  matter,  the  condition  of  the  accused  would  not 
have  been  bettered  if  he  had  fled  for  miles  and  had  finally  fallen  down 
with  exhaustion,  provided  Webb  was  continuous  in  his  eflbrts  to  over- 
take him.  But  this  view  is  consistent  with  neither  the  letter  nor  spirit 
of  the  legal  principle.  A  conflict  is  the  work  of  at  least  two  persons, 
and  when  one  has  wholly  withdrawn  from  it,  that  conflict  is  ended  ;  and 
it  cannot  be  prolonged  by  the  efl'orts  of  him  who  remains  to  bring  on 
another.  It  is  very  true,  that  the  original  assault  may  have  aroused  the 
passions  which  impel  the  pursuer  to  take  vengeance  upon  his  adversary  ; 
and  if  death  should  ensue  from  his  act,  it  might  be  entirely  suflScient  to 
mitigate  the  crime.  But  it  would  still  be  a  crime,  and  the  law  cannot 
for  a  moment  tolerate  the  execution  of  vengeance  by  private  parties. 
If  this  were  allowed,  such  passions  might  be  as  eflfectually  aroused  by 
•words  as  blows ;  and,  instead  of  the  principle,  so  vital  to  the  peace  of 
society,  that  the  law  alone  must  be  relied  upon  for  the  redress  of  all 


SECT.  IV.]  STOFTEE  V.   STATE.  337 

injuries,  we  should  have  avengers  of  injuries,  real  or  supposed,  execut- 
ing their  punishments  upon  victims  stripped  of  all  legal  power,  wliat- 
ever  might  be  the  necessity,  of  defending  their  own  lives.  It  is  needless 
to  say  that  such  a  course  would  be  alike  destructive  to  public  order 
and  private  security,  and  would  be  substituting  for  the  empire  of  the 
laws,  a  system  of  force  and  violence. 

A  line  of  distinction  must  be  somewhere  drawn,  which,  leaving  the 
originator  of  a  combat  to  the  necessary  consequences  of  his  illegal  and 
malicious  conduct,  shall  neither  impose  upon  him  punishments  or  dis- 
abilities unknown  to  the  law,  nor  encourage  his  adversary  to  wreak 
vengeance  upon  him,  rather  than  resort  to  the  legal  tribunals  for  redress  ; 
and  we  think,  upon  principle  and  the  decided  weight  of  authority,  it  lies 
precisely  where  we  have  already  indicated.  While  he  remains  in  the 
conflict,  to  whatever  extremity  he  may  be  reduced,  he  cannot  be  ex- 
cused for  taking  the  life  of  his  antagonist  to  save  his  own.  In  such 
case,  it  may  be  rightfully  and  truthfully  said  that  he  brought  the  neces- 
sity upon  himself  by  his  own  criminal  conduct.  But  when  he  has  suc- 
ceeded in  wholly  withdrawing  himself  from  the  contest,  and  that  so 
palpably  as,  at  the  same  time,  to  manifest  his  own  good  faith  and  to 
remove  any  just  apprehension  from  his  adversary,  he  is  again  remitted 
to  his  right  of  self-defence,  and  may  make  it  effectual  by  opposing  force 
to  force,  and,  when  all  other  means  have  failed,  may  legally  act  ui>on 
the  instinct  of  self-preservation,  and  save  his  own  life  by  sacrificing  the 
life  of  one  who  persists  in  endangering  it. 

If  these  views  are  correct,  their  application  to  the  case  under  consi- 
deration, is  very  obvious.  Both  the  instruction  requested,  and  that 
given,  are  based  upon  the  hypothesis  that  the  accused  had,  in  good 
faith  and  abandoning  all  criminal  purpose,  withdrawn  from  the  combat ; 
that  he  had  not  only  retreated  to  the  wall,  but  behind  the  wall ;  and  had 
not  only  gone  from  the  view  of  his  adversary,  but  to  a  place  of  sup- 
posed security  from  his  attacks.  In  all  this,  his  conduct  was  strictly 
lawful.  In  the  language  of  the  books,  he  "  had  actually  put  into  exer- 
cise the  duty  of  withdrawing  from  the  place."  It  is  very  true  that  the 
evidence  tended  to  implicate  him  in  a  very  serious  crime  in  the  first 
attack  upon  Webb,  for  which  his  subsequent  conduct  could  not  atone, 
and  for  which  he  was  then,  and  still  is,  liable  to  prosecution  and  punish- 
ment ;  but  when  Webb  and  his  associates  afterwards  pursued  and  at- 
tacked him,  they  were  wholly  in  the  wrong,  and  necessarily  took  upon 
themselves  all  the  hazards  of  such  an  unlawful  enterprise. 


23 


338  STATE  V.   DONNELLY.  [CHAP.  IX. 


STATE  V.  DONNELLY. 
Supreme  Court  of  Iowa.     1886. 

[Reported  69  Iowa,  705.] 

Adams,  C.  J.^  —  The  defendant  shot  his  father,  Patrick  Donnelly, 
with  a  shot-gun,  causing  a  wound  of  which  he  died  about  two  days 
afterwards.  The  deceased  had  become  very  angry  with  the  defendant, 
and  at  time  of  the  firing  of  the  fatal  shot  was  pursuing  the  defendant 
with  a  pitchfork,  and  the  circumstances  were  such  that  we  think  that 
the  jury  might  have  believed  that  he  intended  to  take  the  life  of  the 
defendant.  On  the  other  hand,  the  circumstances  were  such  that  we 
think  that  the  jury  might  have  believed  that  the  defendant  could  have 
escaped,  and  fully  protected  himself  by  retreating,  and  that  he  had 
reasonable  ground  for  so  thinking. 

The  court  gave  an  instruction  in  these  words :  "  You  are  instructed 
that  it  is  a  general  rule  of  the  law  that,  where  one  is  assaulted  by 
another,  it  is  the  duty  of  the  person  thus  assaulted  to  retire  to  what  is 
termed  in  the  law  a  wall  or  ditch  before  he  is  justified  in  repelling  such 
assault  in  taking  the  life  of  his  assailant.  But  cases  frequently  arise 
where  the  assault  is  made  with  a  dangerous  or  deadly  weapon,  and  in 
so  fierce  a  manner  as  not  to  allow  the  part}'  thus  assaulted  to  retire 
without  manifest  danger  to  his  life  or  of  great  bodily  injur}- ;  in  such 
cases  he  is  not  required  to  retreat."  The  defendant  assigns  the  giving 
of  this  instruction  as  error.  He  contends  that  the  court  misstated  the 
law  in  holding,  by  implication,  that  he  is  excused  from  doing  so  only 
where  it  would  manifestl}-  be  dangerous  to  attempt  it.  His  position  is, 
that  the  assailed  is  under  obligation  to  retreat  onl}'  where  the  assault  is 
not  felonious,  and  that  where  it  is  felonious,  as  the  evidence  tends  to 
show  in  this  case,  he  may  stand  his  ground  and  kill  his  assailant,  what^ 
ever  his  means  of  retreat  and  escape  might  be,  provided  only  he  had 
reasonable  cause  for  believing  that  if  he  stood  his  ground,  and  did  not 
kill  his  assailant,  his  assailant  would  kill  him,  or  inflict  a  great  bodily 
injur}'.  Under  this  theory  and  the  evidence,  the  jury  might  have  found 
that  the  defendant  was  justified  in  killing  his  father,  and  that,  too,  even 
though  there  had  been  other  evidence  showing  that  his  father  was  so 
old  and  decrepit  that  the  defendant  could  have  escaped  him  by  simply 
walking  away  from  him.  It  is,  perhaps,  not  to  be  denied  that  the 
defendant's  theory  finds  some  support  in  text-books  and  decisions; 
but  in  our  opinion  it  cannot  be  approved.  This  court  has,  to  be  sure, 
held  that  a  person  assailed  in  his  own  house  is  not  bound  to  retreat, 
though  by  doing  so  he  might  manifestly  secure  his  safety.  State  v. 
Middleham,  62  Iowa,  150.  While  there  is  some  ground  for  contending 
that  the  rule  does  not  fully  accord  with  the  sacredness  which  in  later 
years  is  attached  to  human  life,  the  course  of  decisions  appeared  to  be 

*  Part  of  the  opiaion  only  is  given. 


bEGT.  IV.]  CREIGHTON   V.   COMMONWEALTH.  339 

such  as  not  to  justify  a  departure  from  it.  The  rule  for  which  the 
defeiulant  contends  seems,  so  far  as  it  finds  support  in  the  authorities, 
to  be  based  upon  the  idea  that,  where  a  person  attempts  to  commit  a 
felony,  it  is  justifiable  to  take  the  oliender's  life  if  that  is  the  only  way 
in  which  he  can  be  prevented  from  consummating  the  felony  attempted. 
But  where  a  person  is  assailed  by  another  who  attempts  to  takes  his 
life,  or  intlict  great  bodily  injury,  and  the  assailed  can  manifestly  secure 
safety  by  retreating,  then  it  is  not  necessary  to  take  the  life  of  the 
assailant  to  prevent  tlie  consummation  of  the  felony  attempted.  In 
Koscoe,  Crim.  Ev.  7G8,  note,  the  anuotator  says:  ''When  a  man 
expects  to  be  attacked,  the  right  to  defend  himself  does  not  arise  until 
he  has  done  everything  to  avoid  that  necessity,"  —  citing  People  v. 
Sullivan,  7  N.  Y.  396;  Mitchell  v.  State,  22  Ga.  211  ;  Lyon  v.  State, 
id.  399  ;  Cotton  v.  State,  31  Miss.  504  ;  People  v.  Hurley,  8  Cal.  390 ; 
State  V.  Thompson,  9  Iowa,  188;  U.  S.  v.  Mingo,  2  Curt.  1.  In  our 
opinion  the  court  did  not  err  in  giving  the  instruction  in  question.^ 


CREIGHTON  v.  COMMONWEALTH. 

Court  of  Appeals  of  Kentucky.      1886. 

[Reported  84  Kentucky,  103.] 

Pryor,  J.'  The  case  under  consideration  has  been  heretofore  in  this 
court,  and  the  judgment  of  conviction  reversed. 

The  appellant  was  indicted,  tried,  and  convicted  of  manslaughter  for 
the  killing  of  Ambrose  W^ilson. 

It  is  claimed  by  the  accused  that  Wilson  attempted  to  arrest  him  for 
a  misdemeanor  when  he  was  not  a  peace  officer,  and  had  no  authority 
to  take  charge  of  his  person  or  make  the  arrest,  and  that  in  the  un- 
lawful conduct  of  Wilson  originated  the  altercation  resulting  in  his 
death.  This  court  held  in  the  former  opinion  (83  Ky.  142)  that  the 
deceased  was  not  a  peace  officer,  and  in  attempting  to  make  the  arrest 
was  guilty  of  a  trespass,  and  that  this  fact  should  not  have  been  ex- 
cluded from  the  consideration  of  the  jury. 

In  resisting  the  arrest  —  and  this  the  accused  had  the  right  to  do  — 
he  could  not  take  the  life  of  Wilson  unless  his  own  life  was  in  danger, 
or  to  save  his  person  from  great  bodily  injury.  If  either  fact  existed, 
or  if  he  had  reasonable  grounds  to  believe,  and  did  believe,  that  he  was 
in  imminent  peril  of  losing  his  life,  then,  for  his  own  protection,  he  had 
the  right  to  take  the  life  of  the  deceased. 

The  right  of  protection  against  all  forcible  attacks  upon  the  person 

1  Ace.  State  v.  Rheams,  34  Minn.  18.  Contra,  Runyan  v.  State,  57  Ind.  80;  Erwia 
r.  SUte,  29  Ohio  St.  186. 

See  also  People  v.  Macard,  73  Mich.  15  ;  Bird  i?.  State,  77  Wis.  276,  —  Ed. 
'  Part  of  the  opinion  only  is  given. 


340  CREIGHTON  V.   COMMONWEALTH.  [CHAP.  IX. 

belongs  to  eyery  man ;  but  the  extent  to  which  this  may  go,  or  the 
manner  of  defence,  is  an  important  inquiry.  Human  life  cannot  be 
taken  unless  to  protect  the  life  of  another,  or  prevent  the  infliction  of 
some  great  bodily  injury,  and  the  degree  of  force  to  be  used  must  be 
determined  by  the  character  of  the  attack  made.  "Although  a  man 
will  not  be  justified,  then,  if  he  kill  in  defence  against  an  illegal  arrest 
of  an  ordinary  character,  3'et  the  law  sets  such  a  high  value  upon  the 
liberty  of  the  citizen  that  an  attempt  to  arrest  him  unlawfully  is 
esteemed  a  great  provocation,  such  as  will  reduce  a  killing  in  the 
resistance  of  such  an  arrest  to  manslaughter."  Commonwealth  v. 
Carey,  12  Cush.  246;  Roberts  v.  State,  14  Mo.  138;  1  Hale's  Pleas 
of  the  Crown,  457 ;  note  to  Horrigan  &  Thompson's  Cases  on  Self- 
Defence,  p.  816. 

Bishop  says:  "The  attempt  to  take  awa}'  one's  liberty  is  not  such 
an  aggression  as  may  be  resisted  to  the  death.  Nothing  short  of  an 
endeavor  to  destroy  life  will  justify  the  taking  of  life,  is  a  doctrine  that 
prevails  in  such  a  case."     1  Bishop's  Crim.  Law,  §  868. 

At  first  impression  it  would  seem  that  in  the  attempt  to  deprive  one 
wrongfully  of  his  personal  liberty,  the  party  assaulted  should  be  per- 
mitted to  use  all  the  force  necessary  to  release  himself  from  the  unlawful 
arrest,  or  to  prevent  the  imprisonment ;  for  life  being  valueless  without 
liberty^  the  modes  of  defence  for  the  preservation  of  human  life  should 
be  allowed  for  the  maintenance  of  human  liberty. 

Mr.  Bishop  sa^'S :  "The  reason  why  a  man  may  not  oppose  an 
attempt  on  his  liberty  by  the  same  extreme  measures  permissible  in  an 
attempt  on  his  life,  may  be  because  liberty  can  be  secured  by  a  resort 
to  the  laws."     1  Bishop's  Crim.  Law,  §  868. 

There  are  cases  in  which  the  party  subjected  to  the  unlawful  arrest 
may  resist,  even  to  taking  the  life  of  the  wrong-doer.  Where  the 
attempt,  says  Mr.  Bishop,  is  to  conve}'  one  by  force  beyond  the  reach 
of  law,  or  to  carry  him  out  of  the  country,  in  such  extreme  cases  the 
part}'  would  be  justified  in  resisting  to  the  death  of  his  adversary. 

In  the  present  case  the  court  below  told  the  jur}'  "  that  the  an-est  of 
ihe  accused  was  unlawful,  and  that  the  latter  had  the  right  to  resist 
the  arrest  by  the  use  of  such  force,  but  only  such  force,  as  was  neces- 
sary', or  seemed  to  him  (the  defendant),  in  the  exercise  of  a  reasonable 
judgment,  to  be  necessary  to  repel  the  force  used  by  Wilson  in  attempt- 
ing to  arrest  him  ;  and  if  the  jury  believe  from  the  evidence  that  the 
defendant,  at  the  time  he  shot  and  killed  Wilson,  believed,  and  had 
reasonable  grounds  to  believe,  that  he  was  then  and  there  in  immediate 
danger  of  losing  his  own  life,  or  of  great  bodily  harm  at  the  hands  of 
said  Wilson,  and  that  to  shoot  said  Wilson  was  necessary',  or  seemed 
to  the  defendant,  in  the  exercise  of  a  reasonable  judgment,  to  be  neces- 
sary, to  avert  the  danger,  real  or  to  him  apparent,  as  before  stated,  the 
jury  should  find  him  not  guilty." 

Learned  counsel  for  the  defence,  in  response  to  the  argument  by  the 
attome}'  for  the  State,  insisted  that  his  client  had  the  right  to  use  such 


SECT.  IV.]  STATE  V.   SHERMAN.  341 

force,  and  no  more,  as  was  necessary  to  resist  the  arrest  and  prevent 
an  unlawful  imprisonuient,  and  that  the  danger  to  life  or  the  fear  of 
wreat  bodily  harm  should  have  been  eliminated  from  the  instruction. 
However  persuasive  his  argument,  and  conceding  that  any  other  arrest 
and  imprisonment  than  that  which  is  in  accordance  with  law  and  neces- 
sary for  the  ends  of  public  justice  is  inconsistent  with  civil  liberty, 
still  the  enjoyment  of  the  absolute  right  of  personal  liberty  cannot  be 
asserted  by  taking  the  lives  of  those  restraining  its  exercise,  unless  the 
attempt  to  prevent  its  enjoyment  endangers  the  life  of  the  citizen,  or 
subjects  him  to  great  bodily  harm. 

The  law  has  merely  said  to  the  citizen  that,  although  your  liberty 
has  been  restrained,  you  cannot  deprive  the  aggressor  of  his  life  in 
order  to  regain  it,  unless  you  are  in  danger  of  losing  your  own  life. 

Such  was  the  instruction  given  by  the  court  below,  and  the  accused 
having  been  found  guilty  of  manslaughter  only,  we  perceive  no  reason 
for  disturbing  the  judgment,  and  the  same  is  now  aflQrmed. 


STATE  V.   SHERMAN. 
Supreme  Court  of  Rhode  Island.     1889. 

[Reported  16  Rhode  Island,  631.] 

DuRFEE,  C.  J.^  On  trial  in  the  Court  of  Common  Pleas  the  com- 
plainant testified  that,  seeing  the  defendants  tearing  down  the  cause- 
way, he  ran  to  where  said  John  P.  Sherman  was  at  work,  and  put  his 
foot  on  a  stone  which  said  John  P.  was  prying  up  with  a  crowbar ; 
that  said  John  P.  raised  the  crowbar  as  if  to  strike  him,  whereupon  he 
seized  it  in  self-defence,  and  some  one,  he  knew  not  who,  knocked 
him  down,  and  that  said  John  P.  twice  threw  him  from  the  causeway 
into  the  water.  His  testimony  was  corroborated  by  other  witnesses. 
On  the  other  hand,  said  John  P.  testified  that  the  complainant  rushed 
down  and  seized  him,  that  he  never  either  struck  or  struck  at  him,  but 
only  pushed  him  awa}',  using  no  more  force  than  was  necessary  for 
self-protection,  as  the  complainant  repeatedly  attacked  him.  Other 
witnesses  corroborated  him.  He  also  testified  that  the  open  water  at 
the  end  of  the  causeway  was  too  shallow  for  him  to  pass  without  get- 
ting out  of  his  boat  and  dragging  it  After  the  case  had  been  argued 
to  the  jury,  he  asked  the  court  to  instruct  the  jur}'  as  follows,  to  wit : 
"  That  a  man  in  a  public  place,  if  attacked,  ma}'  resist  with  his  natural 
weapons,  using  no  more  force  than  is  necessar}*,  without  retreating." 
The  court  refused,  but  did  instruct  them  that  in  such  a  case  a  man  must 
retreat,  if  he  can  safely,  and  that  the  defendant  did  not  testify  that 
there  was  anything  to  prevent  his  retreating.     The  defendant  excepted 

^  Part  of  the  opinion  only  is  giren. 


342  STATE  V.   SHERMAN.  [CHAP.  IX. 

to  both  the  refusal  and  the  instruction.  The  bill  of  exceptions  sets 
forth  that  the  complainant's  counsel  stated,  in  his  argument  to  the 
jurj',  that  he  did  not  claim  for  the  complainant  the  right  to  use  any 
force  to  protect  the  causewa}',  or  an^-  force  against  the  defendant,  ex- 
cept such  as  he  might  lawfully  use  in  any  public  place. 

We  think  the  court  below  erred.  Generally  a  person  wrongfully 
assailed  cannot  justify  the  killing  of  his  assailant  in  mere  self-defence, 
if  he  can  safely  avoid  it  bj'  retreating.  Retreat  is  not  always  obliga- 
tor}', even  to  avoid  killing ;  for  if  attack  be  made  with  deadly  weapons, 
or  with  murderous  or  felonious  intent,  the  assailed  may  stand  his 
ground,  and  if  need  be  kill  his  assailant.  But  there  is  no  question  of 
killing  here,  and  we  know  of  no  case  which  holds  that  retreat  is  obli- 
gatory- simply  to  avoid  a  conflict.  Where  there  is  no  homicide  the 
rule  generall}'  laid  down  is,  that  the  assaulted  person  may  defend  him- 
self, opposing  force  to  force,  using  so  much  force  as  is  necessary  for 
bis  protection,  and  can  be  held  to  answer  onlj-  for  exceeding  such 
degree.  Mr.  Bishop,  in  his  work  on  Criminal  Law,  §  849,  saj's: 
"  The  assailed  person  is  not  permitted  to  stand  and  kill  his  adveisary, 
if  there  is  a  waj*  of  escape  oi)en  to  him,  while  yet  he  may  repel  force 
b}'  force,  and,  within  limits  differing  with  the  facts  of  the  case,  give 
back  blow  for  blow."  See,  also,  1  Wharton's  Criminal  Law,  §  99 ; 
Stephen's  Digest  Criminal  Law,  art.  200 ;  May's  Criminal  Law,  Stu- 
dents' Series,  §  62.  Mr.  May's  language  is:  "There  seems  to  be  no 
necessity  for  retreating  or  endeavoring  to  escape  from  the  assailant 
before  resorting  to  any  means  of  self-defence  short  of  those  which 
threaten  the  assailant's  life."  In  Commonwealth  v.  Drum,  58  Pa. 
1,  21,  22,  where  the  defendant,  who  was  indicted  for  murder,  set  up 
that  he  acted  in  self-defence,  the  court  in  charging  the  jury  used  the 
following  language :  "The  right  to  stand  in  self-defence  without  flee- 
ing has  been  strongly  asserted  b}'  the  defence.  It  is  certainl}^  true 
that  ever}'  citizen  may  rightfully  traverse  the  street,  or  may  stand  in 
all  proper  places,  and  need  not  flee  from  every  one  who  chooses  to 
assail  him.  Without  this  our  liberties  would  be  worthless.  But  the 
law  does  not  apply  this  right  to  homicide."  There  are  cases,  however, 
which  manifest  a  disposition  to  apply  the  same  rule  generally.  Run- 
yan  v.  The  State,  57  Ind.  80 ;  Erwin  v.  State,  29  Ohio  St.  186. 

In  Gallagher  v.  The  State,  3  Minn.  270,  the  defendant  was  com- 
plained of  for  assault  and  battery,  and  set  up  in  justification  that  he 
acted  in  self-defence,  the  complainant  having  stepped  forward  with 
his  cane  raised,  as  if  about  to  strike.  The  lower  court,  on  trial,  ruled 
as  follows :  "Where  a  person  is  approached  b}'  another  with  a  cane 
raised  in  a  hostile  manner,  the  former  is  not  justified  in  striking  un- 
necessarily, but  is  bound  to  retreat  reasonably  before  striking."  On 
error  the  Supreme  Court  held  the  ruling  to  be  erroneous.  "  Such  is 
not  the  law,"  say  the  court;  "  but  the  party  thus  assaulted  ma}'  strike, 
or  use  a  sufficient  degree  of  force  to  prevent  the  intended  blow,  with- 
out retreating  at  all."  The  case  is  exactly  in  point.  The  exception 
is  therefore  sustained,  and  the  cause  will  be  remitted  for  a  new  trial. 


SECT,  v.]  REGINA  V.   ROSE.  343 

SECTION  V. 

Defence  of  Other  Persons. 

1  East  P.  C.  289,  290.  In  all  cases  where  a  felonious  attack  is 
made,  a  servant  or  any  other  person  present  may  lawfully  interpose  to 
prevent  the  mischief  intended  ;  and  if  death  ensue,  the  party  so  inter- 
posing will  be  justified.  Thus,  in  the  instances  of  arson  or  burglary, 
a  lodger  may  lawfully  kill  the  assailant  in  the  same  manner  as  the 
owner  himself  might  do.  .  .  .  But  the  case  of  third  persons  interfer- 
ing in  mutual  combats  or  sudden  affrays,  except  as  mediators  to  pre- 
serve the  peace,  requires  greater  caution.  ...  If  A.,  a  stranger,  take 
part  on  a  sudden  with  either  B.  or  C.  who  are  engaged  togetlier  in  an 
affra}',  wherein  both  are  in  the  eye  of  the  law  blamable,  although 
perhaps  in  different  degrees  ;  and  afterwards  kill  either,  although  in 
the  necessar}'  defence  of  the  other,  it  cannot  be  less  than  manslaughter  ; 
for  he  who  thus  officiously  interferes  without  any  previous  knowledge 
of  the  merits  of  the  dispute,  not  to  preserve  the  peace  but  to  partake 
in  the  broil,  is  himself  highly  culpable, — having  less  provocation  to 
heat  his  blood  than  probably  the  parties  themselves  had  who  originally 
engaged  in  the  dispute.^ 


\j 


REGINA   y.   ROSE. 
Oxford  Assizes.     1884. 

[Reported  15  Cox  C.  C.  540.] 

The  prisoner  Tvas  indicted  for  the  wilful  murder  of  his  father,  John 
"William  Rose,  at  Witnej',  on  the  27th  day  of  September. 

The  material  facts  proved  were  as  follows :  The  prisoner,  a  weakly 
j'oung  man  of  about  twenty-two  j'ears  of  age,  was  at  the  time  of  the 
alleged  murder  living  with  his  father,  mother,  and  sisters  at  \Vitne3'. 
The  father,  who  was  a  very  powerful  man,  had  recently  taken  to  exces- 
sive drinking,  and  while  in  a  state  of  intoxication  w\'V3  possessed  with 
the  idea  that  his  wife  was  unfaithful  to  him.  He  had  on  more  than  one 
occasion  threatened  to  take  away  her  life,  and  so  firmly  impressed  was 
she  with  the  idea  that  these  were  no  idle  threats  that  the  prisoner's 
mother  had  frequently  concealed  everything  in  the  house  which  could 
be  used  as  a  weapon. 

On  the  night  in  question  the  family  retired  to  their  bedrooms,  which 
were  situated  adjoining  to  one  another,   about  nine  o'clock.     The 

^  For  the  analogous  case  of  a  stranger  interfering  to  rescue  one  who  having  been  ille- 
gally arrested  had  nevertheless  submitted,  see  Rex  v.  Tooley,  2  Ld.  Ray.  1296 ; 
Hogget's  Case,  Kel.  69 ;  Adey's  Case,  1  Leach,  245 ;  Steph.  Dig.  Cr.  L.  372  —  Ed. 


344  REGINA   V.    ROSE.  [CHAP.  IX. 

deceased  man  appears  to  have  immediately  commenced  abusing  and 
illtreating  his  wife,  accusing  her  of  unfaithfulness  to  him  and  threaten- 
ing to  murder  her.  On  several  occasions  she  retired  for  safet}-  to  her 
daughter's  room  ;  on  the  last  occasion  her  husband  pursued  her,  and 
seizing  her  dragged  her  towards  the  top  of  the  stairs,  threatening  to 
push  her  down.  He  then  said  he  would  cut  her  throat,  left  her  saying 
he  was  going  to  fetch  the  knife  which  all  the  family  seem  to  have 
known  was  in  his  room,  and  then  rushing  back  seized  his  wife,  and 
forced  her  up  against  the  balusters,  holding  her  in  such  a  position  that 
the  daughters  seem  to  have  thought  he  was  actually  cutting  her  throat. 
The  daughters  and  mother  shouted  "  Murder  !  "  and  the  prisoner,  run- 
ning out  of  his  room,  found  his  father  and  mother  in  the  position 
described.  No  evidence  was  given  that  the  deceased  man  had  any 
knife  in  his  hand,  and  all  the  witnesses  said  that  they  did  not  see  then 
or  afterwards  find  his  knife. 

The  prisoner  fired  one  shot  (according  to  his  own  account)  to  frighten 
his  father,  but  no  trace  of  any  bullet  could  be  found,  and  immediately 
after  he  fired  another  shot  which,  striking  his  father  in  the  eye,  lodged 
in  the  brain  and  caused  his  death  in  about  twelve  hours.  On  his  arrest 
the  prisoner  said,  "  Father  was  murdering  Mother.  I  shot  on  one  side 
to  frighten  him  :  he  would  not  leave  her,  so  I  shot  him." 

In  cross-examination  the  deceased  man's  employer  said  that  the  pris- 
oner's father  was  the  strongest  man  he  had  ever  seen,  and  the  prisoner 
would  not  have  had  the  slightest  chance  in  a  hand-to-hand  encounter 
with  him. 

The  defence  set  up  was  that  the  case  was  one  of  excusable  homicide. 

His  Lordship  [Lopes,  J.]  in  the  course  of  his  summing  up  said  : 
Homicide  is  excusable  if  a  person  takes  away  the  life  of  another  in 
defending  himself,  if  the  fatal  blow  which  takes  away  life  is  necessary 
for  his  preservation.  The  law  says  not  only  in  self-defence  such  as  I 
have  described  may  homicide  be  excusable,  but  also  it  may  be  excusable 
if  the  fatal  blow  inflicted  was  necessary  for  the  preservation  of  life.  In 
the  case  of  parent  and  child,  if  the  parent  has  reason  to  believe  that  the 
life  of  a  child  is  in  imminent  danger  by  reason  of  an  assault  by  another 
person  and  that  the  only  possible,  fair,  and  reasonable  means  of  saving 
the  child's  life  is  by  doing  something  which  will  cause  the  death  of  that 
person,  the  law  excuses  that  act  It  is  the  same  of  a  child  with  regard 
to  a  parent ;  it  is  the  same  in  the  case  of  husband  and  wife.  Therefore 
I  propose  to  lay  the  law  before  3"ou  in  this  form :  If  you  think,  having 
regard  to  the  evidence  and  drawing  fair  and  proper  inferences  from  it, 
that  the  prisoner  at  the  bar  acted  without  vindictive  feeling  towards  his 
father  when  he  fired  the  shot,  if  you  think  that  at  the  time  he  fired  that 
shot  he  honestly  believed  and  had  reasonable  grounds  for  the  belief  that 
his  mother's  life  was  in  imminent  peril,  and  that  the  fatal  shot  which 
he  fired  was  absolutely  necessary  for  the  preservation  of  her  life,  then 
he  ought  to  be  excused,  and  the  law  will  excuse  him  from  the  conse- 
quences of  the  homicide.     If,  however,  on  the  other  hand,  you  cannot 


SECT,  v.]  PEOPLE   V.   COOK.  345 

come  to  that  conclusion,  if  you  think,  and  think  without  any  reasonable 
doubt,  that  it  is  not  a  fair  inference  to  be  drawn  from  the  evidence,  hut 
are  clearly  of  opinion  that  he  acted  vindictively  and  had  not  such  a 
belief  as  I  have  ilescribed  to  you,  or  had  not  reasonable  grounds  for 
such  a  belief,  then  you  must  find  hiiu  guilty  of  murder. 

Vtrdict,  Not  guilty} 


PEOPLE   V.  COOK. 
SupuEME  Court  of  Michigan.     1878. 

[Reported  39  Michigan,  236.] 

Marston,  J.'  The  respondent  was  tried  upon  an  information  charg- 
ing him  with  having  committed  the  crime  of  murder,  and  was  convicted 
of  manslaughter.  The  case  comes  here  upon  exceptions  before  sen- 
tence. The  shooting  of  the  deceased  by  respondent  was  not  denied  on 
the  trial.  The  defence  relied  on  was  justifiable  homicide,  committed  in 
order  to  prevent  the  abduction  and  seduction  of  respondent's  sister  by 
the  deceased. 

There  is  not  a  scintilla  of  evidence  in  the  case  to  establish  this  de- 
fence, unless  the  fact  that  he  had  reason  to  believe  that  deceased  was 
about  to  seduce  and  debauch  his  sister  would  be  a  justification. 

It  was  said  that  the  testimony  given  on  the  trial  showed  the  reputa- 
tion of  the  deceased  for  chastity  was  bad,  of  which  fact  the  respondent 
had  knowledge  ;  that  deceased  had  been  arrested  for  the  seduction  of  a 
Miss  Briggs  ;  that  he  had  publicly  stated  in  respondent's  presence  and 
hearing  the  manner  in  which  he  had  seduced  her;  that  while  under 
such  arrest  he  had  stated  that  he  wanted  to  seduce  just  one  more  girl, 
Sarah  Cook,  but  this  fact  had  not  been  brought  to  respondent's  knowl- 
eilge ;  that  the  night  before  the  shooting  deceased  and  Sarah  Cook 
had  been  out  together  quite  late  ;  that  on  the  morning  of  the  shooting, 
respondent's  sister,  Sarah  Cook,  left  the  breakfast  table  and  went  over 
to  the  house  of  deceased  ;  that  she  shortly  afterwards  returned,  took 
her  wearing  apparel,  and  announced  that  she  was  going  off  with  Batey, 
bade  the  family  good-by,  and  said  they  might  never  see  her  again. 

The  defence  claimed  the  farther  fact  to  be  that  Sarah  Cook  at  that 
time  was  under  the  influence  of  drugs,  administered  to  her  by  deceased, 
in  order  to  enable  him  to  accomplish  his  purpose,  and  that  the  shooting 
was  believed  by  the  respondent  to  be  necessary  in  order  to  prevent  such 
a  result. 

Blackstone  says  the  English  law  justifies  a  woman  killing  one  who 
attempts  to  ravish  her,  and  so  too  the  husband  or  father  may  justify 

»  Se«  Campbell  v.  Com.,  88  Ky.  402.     As  to  the  right  of  »  U.  S  marshal  to  defend 
%  judge,  see  In  re  Neagle,  135  (I.  S.  1.  —  Ed. 
*  Part  of  the  opiDion  only  is  giren. 


346  ANONYMOUS.  [chap.  IX. 

killing  a  man  who  attempts  a  rape  upon  bis  wife  or  daughter ;  but  not 
if  he  takes  them  in  adultery  bj'  consent,  for  the  one  is  forcible  and  felo- 
nious but  not  the  other.  The  principle,  he  says,  which  runs  tlirough 
all  laws  seems  to  be  this ;  that  where  a  crime  in  itself  capital  is  endeav- 
ored to  be  committed  by  force,  it  is  lawful  to  repel  that  foi'ce  by  the 
death  of  the  party  attempting.  It  is  not  claimed  that  any  direct  force 
was  attempted  in  this  case,  but  that  the  felony  intended  was  to  be 
accomplished  b3'  the  assistance  of  drugs  administered  or  to  be  admin- 
istered, and  that  where  the  power  of  resistance  is  thus  overcome,  and 
advantage  thereof  taken  to  violate  her  person,  the  act  would  be  rape, 
and  for  such  purpose  the  law  would  conclusively  presume  that  sufficient 
force  was  used,  at  the  time  intercourse  took  place,  to  so  characterize 
the  act.  The  present  case,  however,  falls  short  of  coming  within  the 
principles  which  would  justifj-  the  taking  of  life.  The  utmost  that 
can  here  be  said  is  that  the  deceased  had  used  and  was  likel}-  to  use 
fraudulent  means,  b}'  administering  drugs,  to  excite  the  passions,  or 
overcome  the  resistance  he  otherwise  would  have  been  sure  to  encounter, 
in  order  to  accomplish  his  purpose.  So  far  as  he  had  then  gone,  even 
conceding  all  that  is  claimed,  fraudulent  and  not  forcible  means  had 
been  resorted  to,  which  would  not  create  that  necessity  for  immediate 
action  on  the  part  of  the  accused,  b^*  the  taking  of  life,  to  prevent  an 
attempted  forcible  felon}-.  Ample  time  and  opportunit}'  existed  to  en- 
able the  accused  to  resort  to  other  available  and  adequate  means  to 
/  prevent  the  anticipated  injury.  The  evil  threatened  could  have  been 
prevented  by  other  means  within  the  reach  and  power  of  the  accused. 
There  was  no  such  immediate  danger,  nor  would  the  facts  warrant  the 
'  apprehension  of  such  immediate  danger  as  would  justify  a  resort  to  the 
^  means  adopted. 


SECTION  vr. 

Defence  of  Property, 

ANONYMOUS. 

King's  Bench.    1506. 

[Reported  Year  Book,  21  H.  VII.  39,  pi  50.] 

FiNEUX,  C.  J.  If  one  is  in  his  house,  and  hears  that  such  a  one  will 
come  to  his  house  to  beat  him,  he  ma}'  well  assemble  folk  of  his  friends 
and  neighbors  to  help  him,  and  aid  in  the  safeguard  of  his  person  ;  but 
if  one  were  threatened  that  if  he  should  come  to  such  a  market,  or  into 
such  a  place,  be  should  there  be  beaten,  in  that  case  he  could  not  assem- 
ble persons  to  help  him  go  there  in  personal  safety,  for  he  need  not  go 
there,  and  he  may  have  a  remedy  by  surety  of  the  peace. ^    But  a  man's 

1  See  Succession  of  Irwin,  12  La.  Ann.  676.  —  Ed. 


SECT.  VI.]  wild's  case.  347 

house  is  his  castle  and  his  defence,  and  where  he  has  a  peculiar  right 
to  stay,  &c.  And  all  the  justices  iigreed  that  a  servant  may  beat  one 
in  defence  of  his  master.  Tkkmaink  J.,  said  that  a  servant  may  kill 
one  in  defence  of  his  master's  life,  if  he  cannot  otherwise  save  it.  T.  14. 
II.  7.  Tr.  246. 


COOPER'S   CASE. 
King's  Bknch.     1639. 
[Reported  Croke  Cur.  544] 

Cooper  being  indicted  in  tlie  county  of  Surrey  of  the  murder  of  AV.  L. 
in  Southwark  with  a  spit,  he  pleaded  not  guilty;  and  upon  his  arraign- 
ment it  appeared  that  the  said  Cooper,  being  a  prisoner  in  the  King's 
Bench,  and  lying  in  the  house  of  one  Anne  Carricke,  who  kept  a  tavern 
in  the  Rules,  the  said  W.  L.  at  one  of  the  clock  in  the  night,  assaulted 
the  said  house,  and  ottered  to  break  open  the  door,  and  brake  a  staple 
tliereof,  and  swore  he  would  enter  the  house  and  slit  the  nose  of  the 
said  Anne  Carricke,  because  she  was  a  bawd,  and  kept  a  bawdy-house. 
And  the  said  Cooper  dissuading  him  from  those  courses,  and  reprehend- 
ing him,  he  swore,  that  if  he  could  enter  he  would  cut  the  said  Cooper's 
throat ;  and  he  brake  a  window  in  the  lower  room  of  the  house,  and 
thrust  his  rapier  in  at  the  window  against  the  said  Cooper,  who  in 
defence  of  the  house  and  himself  thrust  the  said  W.  L.  into  the  e3-e,  of 
\?hich  stroke  he  died. 

The  question  was,  whether  this  were  within  the  statute  of  24  Hen. 
8,  c.  5. 

The  Cockt  was  of  opinion,  tliat  if  it  were  true  he  brake  the  house 
with  an  intent  to  commit  burglary,  or  to  kill  any  therein,  and  a  party 
■within  the  house  (although  he  be  not  the  master,  but  a  lodger  or 
sojourner  therein)  kill  him  who  made  the  assault  and  intended  mischief 
to  any  in  it,  that  it  is  not  felony,  but  excusable  by  the  said  statute  of 
24  Hen,  8,  c.  5,  which  was  made  in  affirmance  of  the  common  law ; 
wherefore  the  jury  were  appointed  to  consider  of  the  circumstances  of 
the  fact ;  and  the}',  being  a  substantial  jur}'  of  Surrey,  found  the  said 
Cooper  not  guilty  upon  this  indictment ;  whereupon  he  was  discharged. 


WILD'S  CASE. 
Liverpool  Assizes.    1837. 

[Reported  2  Lewin,  214.] 

The  prisoner  was  indicted  for  manslaughter. 

It  appeared  that  the  deceased  had  entered  the  prisoner's  house  in  his 
absence.    The  prisoner  on  returning  home  found  him  there,  and  desired 


348  STATE  V.   PATTERSON.  [CHAP.  IX. 

him  to  withdraw,  but  he  refused  to  go.  Upon  this  words  arose  between 
them,  and  the  prisoner,  becoming  excited,  proceeded  to  use  force,  and 
by  a  kick  which  he  gave  to  the  deceased,  caused  an  injury  which  pro- 
duced his  death. 

Alderson,  B.  a  kick  is  not  a  justifiable  mode  of  turning  a  man  out 
of  your  house,  though  he  be  a  trespasser.  If  a  person  becomes  excited, 
and  being  so  excited  gives  to  another  a  kick,  it  is  an  unjustifiable  act. 

If  the  deceased  would  not  have  died  but  for  the  injury  he  received, 
the  prisoner  having  unlawfully  caused  that  injury,  he  is  guilty  of  man- 
slaughter. 


STATP:  v.  PATTERSON. 
Supreme  Court  of  Vermont.    1873. 

{Reported  45  Vermont,  308.] 

Barrett,  J.^  It  is  not  deemed  needful  for  the  purposes  of  this  case, 
with  reference  to  its  future  prosecution,  to  discuss  specifically  any  other 
subject,  except  that  of  the  dwelling-house  being  one's  castle,  as  bearing 
upon  his  right  to  kill  or  to  use  deadly  M'eapons  in  defence  of  it.  This 
is  presented  in  the  third  request  in  behalf  of  the  respondent,  which  is, 
in  the  language  used  by  Holroyd,  J.,  in  charging  the  jury  in  Meade's 
Case,  infra,  viz. :  "The  making  of  an  attack  upon  a  dwelling,  and  espe- 
cially in  the  night,  the  law  regards  as  equivalent  to  an  assault  on  a 
man's  person,  for  a  man's  house  is  his  castle."  The  purpose  of  this 
request  seems  to  have  been  to  justify  the  killing  with  the  gun,  as  a 
lawful  mode  and  means  of  defending  the  castle,  as  well  as  the  person 
within  it.  Looking  to  the  state  of  the  evidence,  it  is  not  altogether 
obvious  what  there  was  in  the  case  to  warrant  its  being  claimed  that 
the  respondent  killed  Flanders  as  a  means  of  defending  himself  or  his 
castle.  It  was  claimed  in  behalf  of  the  prosecution,  and  the  evidence 
given  in  that  behalf  showed  that  the  gun  was  not  fired  at  Flanders  as 
a  measure  of  force,  to  repel  and  prevent  him  from  breaking  into  the 
house.  Moreover,  in  the  exceptions  it  is  said :  "The  respondent  testi- 
fied that  he  fired  to  the  ground,  and  the  object  in  firing  was,  not  to  hit 
them,  but  to  scare  them  away."  The  respondent  seems  not  to  have 
regarded  it  a  case,  or  a  conjuncture,  in  which  it  was  needful  or  expedi- 
ent to  use  a  deadly  weapon  as  a  means  of  forceful  resistance  to  meet 
and  repel  an  assault  on  his  house  —  whatever  such  assault  in  fact 
■vyas  —  or  to  protect  himself  from  any  threatened  or  feared  assault  on 
his  person.  The  gun,  loaded  with  powder  alone,  would  have  served  all 
the  needs  of  tlie  occasion,  and  of  the  exigency  which  the  respondent 
supposed  then  to  exist  and  to  press  upon  him. 

Nevertheless,  the  point  was  made  by  said  third  request.    It  was  indi- 

*  Part  of  the  opinion,  not  relating  to  the  question  of  justification,  has  been  omitted. 


SECT.  VI.]  STATE   V.   PATTERSON.  349 

cated  in  the  charge  that  the  case  State  v.  Hooker,  17  Vt.  670,  was 
invoked  in  support  of  it,  and  it  is  cited  in  this  court  for  the  same  pur- 
pose. That  case  professes  to  decide  only  the  question  involved  in  and 
presented  by  it,  viz.,  whether  it  was  criminal  under  the  statute  for  the 
respondent  to  resist  an  otlicer  in  the  service  of  civil  process  within  his 
dwelling-house,  such  odicer  having  unlawfully  broken  into  the  house 
for  the  purpose  of  making  such  service.  The  language  of  the  opinion 
is  to  be  interpreted  with  reference  to  the  case  and  the  question.  That 
case  in  no  respect  involved  the  subject  of  the  use  of  a  deadly  weapon 
with  fatal  effect  in  defence  of  the  castle ;  and  it  is  not  to  be  supposed 
that  the  judge  who  drew  up  the  opinion  was  undertaking  to  discuss  or 
propound  the  law  of  that  subject. 

To  come,  then,  to  the  subject  as  it  is  involved  in  this  case  under  said 
third  request.  In  Foster's  Crown  Law,  319,  it  is  said,  "The  books 
say  that  a  man's  house  is  his  castle  for  safety  and  repose  to  himself  and 
family."  In  Cook's  Case,  Cro.  Car.  537,  an  officer,  with  a  capias  ad 
satisfaciendum,  went  with  other  officers,  for  the  purpose  of  executing 
the  same,  to  the  dwelling-house  of  the  respondent,  and,  finding  him 
within,  demanded  of  him  to  open  the  door  and  suffer  them  to  enter. 
He  commanded  them  to  depart,  telling  them  they  should  not  enter. 
Thereupon,  they  broke  a  window,  and  afterwards  went  to  the  door  of 
the  house  and  offered  to  force  it  open,  and  broke  one  of  the  hinges  ; 
whereupon  Cook  discharged  his  musket  at  the  deceased  and  hit  him, 
and  he  died  of  the  wound.  "  After  argument  at  the  bar,  all  the  justices, 
seriatim,  delivered  their  opinions,  that  it  was  not  murder,  but  man- 
slaughter ;  the  bailiff  w^as  slain  in  doing  an  unlawful  act  in  seeking  to 
break  open  the  house  to  execute  process  for  a  subject,  and  every  one 
is  to  defend  his  own  house.  Yet  they  all  held  it  was  manslaughter,  for 
he  might  have  resisted  him  without  kilHng  him  ;  and  when  he  saw  and 
shot  voluntarily  at  him,  it  was  manslaughter." 

That  was  one  of  the  earliest  cases,  and  was  full}'  considered  ;  and  it 
has  been  cited  in  all  the  books  on  criminal  law  since  its  decision  in 
1640  (15th  Car.  I.),  —  with  some  incorrectness  of  statement,  in  1  Hale 
P.  C,  458,  and  in  other  books  adopting  Hale's  text.  This  is  in  some 
measure  rectified  by  a  remark,  1  East  P.  C  321,  322.  See  also  Roscoe 
Cr.  Ev.  758;  also  1  Bishop  Cr.  L.,  §  858,  n.  2  (5th  ed.).  It  is  to  be 
specially  noticed  that  what  made  it  manslaughter  was  that  in  order  to 
defend  his  castle,  it  was  not  nccessar}'  to  kill  the  bailiff. 

The  same  idea  of  necessity,  in  order  to  relieve  the  killing  from  being 
manslaughter,  exists  in  the  case  of  defending  one's  person,  as  stated  in 
1  Hawkins  P.  C.  113  :  "  Homicide  se  defendendo  seems  to  be  when  one 
who  has  no  other  possible  means  of  preserving  his  life  from  one  who 
combats  him  on  a  sudden  quarrel,  or  of  defending  his  person  from  one 
who  attempts  to  beat  him  (especially  if  such  attempt  be  made  upon  him 
in  his  own  house)  kills  the  person  by  whom  he  is  reduced  to  such  an 
inevitable  necessity." 

In  a  learned  note  in  2  Archb.  Cr.  L.  225,  it  is  said  :  "But  when  it  is 


350  STATE   V.   PATTERSON.  [CHAP.  IX. 

said  that  a  man  may  rightfully  use  as  much  force  as  is  necessary  for  the 
l)rotection  of  his  person  and  property',  it  should  be  recollected  that  this 
rule  is  subject  to  this  most  important  modification,  —  that  he  shall  not, 
except  in  extreme  cases,  endanger  human  life,  or  great  bodil}'  harm. 
I  .  .  .  You  can  onK  kill  to  save  life  or  limb,  or  prevent  a  great  crime, 
or  to  accomplish  a  necessary  public  duty."  It  is,  therefore,  clear  that  if 
one  man  deliberately  kills  another  to  prevent  a  mere  trespass  on  his  prop- 
erty —  whether  that  trespass  could  or  could  not  otherwise  be  prevented 
—  he  is  guilty  of  murder.  If,  indeed,  he  had  at  first  used  moderate 
force,  and  this  had  been  returned  with  such  violence  that  his  own  life 
was  endangered,  and  then  he  killed  from  necessity,  it  would  have  been 
excusable  homicide.  Not  because  he  could  take  life  to  save  his  prop- 
erty', but  he  might  take  the  life  of  the  assailant  to  save  his  own. 

Harcourt's  Case,  5  Eliz.,  stated  1  Hale  P.  C.  485,  486,  shows  that 
this  doctrine  is  not  new.  "Harcourt,  being  in  possession  of  the  house 
b}'  title,  as  it  seems,  A.  endeavored  to  enter,  and  shot  an  arrow  at  them 
within  the  house,  and  Harcourt,  from  within,  shot  an  arrow  at  those 
that  would  have  entered,  and  killed  one  of  the  compan}'.  This  was 
ruled  manslaughter,  and  it  was  not  se  defendendo^  because  there  was 
no  danger  of  his  life  from  them  without."  What  was  thus  ruled  is  the 
key  to  the  author's  meaning  in  the  next  following  paragraph  of  his  book, 
which  see. 

The  idea  that  is  embodied  in  the  expression  that  a  man's  house  is  his 
castle,  is  not  that  it  is  his  property,  and,  as  such,  he  has  the  right  to 
defend  and  protect  it  b}'  other  and  more  extreme  means  than  he  might 
lawfuU}'  use  to  defend  and  protect  his  shop,  his  office,  or  his  barn.  The 
sense  in  which  the  house  has  a  peculiar  immunity  is  that  it  is  sacred  for 
the  protection  of  his  person  and  of  his  family.  An  assault  on  the  house 
can  be  regarded  as  an  assault  on  the  person  only  in  case  the  purpose 
of  such  assault  be  injury  to  the  person  of  the  occupant  or  members  of 
his  famil}',  and,  in  order  to  accomplish  this,  the  assailant  attacks  the 
castle  in  order  to  reach  the  inmates.  In  this  view,  it  is  said  and  settled 
that,  in  such  case,  the  inmate  need  not  flee  from  his  house  in  order  to 
escape  from  being  injured  by  the  assailant,  but  he  may  meet  him  at  the 
threshold,  and  prevent  him  from  breaking  in  by  any  means  rendered 
necessary'  by  the  exigency  ;  and  upon  the  same  ground  and  reason  as 
one  may  defend  himself  from  peril  of  life,  or  great  bodily  harm,  b}' 
means  fatal  to  the  assailant,  if  rendered  necessary  by  the  exigency  of 
the  assault. 

This  is  the  meaning  of  what  was  said  by  Holroyd,  J.,  in  charging  the 
jury  in  Meade's  Case,  1  Lewin  C.  C.  184.  Some  exasperated  sailors 
had  ducked  Meade,  and  were  in  the  act  of  throwing  him  into  the  sea, 
when  he  was  rescued  by  the  police.  As  the  gang  were  leaving,  they 
threatened  that  they  would  come  by  night  and  pull  his  house  down. 
In  the  middle  of  the  night  a  great  number  came,  making  menacing 
demonstrations.  Meade,  under  an  apprehension,  as  he  alleged,  that  his 
life  and  property  were  in  danger,  fired  a  pistol,  by  which  one  of  the 


SECT.  VI.]  STATE  V.   PATTERSON.  351 

party  was  killed.  Meade  was  indicted  for  murder.  Upon  that  state  of 
facts  and  evidence,  the  judge  said  to  the  jury :  "A  civil  trespass  will 
not  excuse  tiie  firing  of  a  pistol  at  a  trespasser  in  sudden  resentment 
or  anger,  t&c.  .  .  .  But  a  man  is  not  authorized  to  fire  a  pistol  on  every 
intrusion  or  invasion  of  his  house.  He  ought,  if  he  has  reasonal>le 
opportunity,  to  endeavor  to  remove  him  without  having  recourse  to 
the  last  extremity.  But  the  making  an  attack  upon  a  dwelling,  and 
especially  at  night,  the  law  regards  as  equivalent  to  an  assault  on  a 
man's  person ;  for  a  man's  house  is  his  castle ;  and,  therefore,  in  the 
eye  of  the  law,  it  is  equivalent  to  an  assault;  but  no  words  or  singing 
are  equivalent  to  an  assault;  nor  will  they  authorize  an  assault  in 
return,  &c.  .  .  .  Tliere  are  cases  where  a  person  in  heat  of  blood  kills 
another,  that  the  law  does  not  deem  it  nuirder,  but  lowers  the  offence 
to  manslaughter;  as,  where  a  party  coming  up  by  way  of  making  an 
attack,  and  without  there  being  any  i)reviou3  apprehension  of  danger, 
the  party  attacked,  instead  of  having  recourse  to  a  more  reasonable 
and  less  violent  mode  of  averting  it,  having  an  opportunity  so  to  do,^ 
fires  on  the  Impulse  of  the  moment.  In  the  present  case,  if  you  are  of 
opinion  that  the  prisoner  was  really  attacked,  and  that  the  party  were 
on  the  point  of  breaking  in,  or  likely  to  do  so,  and  execute  the  threats 
of  the  day  before,  he,  perhaps,  was  justified  in  firing  as  he  did.  If  you 
are  of  opinion  that  he  intended  to  fire  over  and  frighten,  then  the  case 
is  one  of  manslaughter  and  not  of  self-defence." 

The  sense  in  which  one's  house  is  his  castle,  and  he  may  defend  him- 
self within  it,  is  shown  by  what  is  said  m  1  Hale  P.  C.  486,  that  "in 
case  he  is  assaulted  in  his  own  house,  he  need  not  flee  as  far  as  he  can, 
as  in  other  cases  of  se  defetidendo,  for  he  hath  the  protection  of  bis  ^/ 
house  to  excuse  him  from  flying,  as  that  would  be  to  give  up  the  pro-  '■^ 
tection  of  his  house  to  his  adversary  by  flight."  Now,  set  over  against 
that  what  is  said  in  1  Russell,  G02,  and  the  true  distinction  between  the 
house  as  property,  on  the  one  hand,  and  as  castle  for  protection  on  the 
other,  is  very  palpable,  viz. :  "If  A.,  in  defence  of  his  house,  kill  B.,  a 
trespasser,  who  endeavors  to  make  an  entry  upon  it,  it  is,  at  least,  com- 
mon manslaughter,  unless,  indeed,  there  were  danger  of  life ; "  p.  663. 
"  But  where  the  trespass  is  barely  against  the  property  of  another,  the  -^ 
law  does  not  admit  the  force  of  the  provocation  as  suflScient  to  warrant 
the  owner  in  making  use  of  a  deadly  or  dangerous  weapon  ;  more  par- 
ticularly if  such  violence  is  used  after  the  party  has  desisted  from  the 
trespass."  In  Carroll  v.  State,  23  Ala.  36,  it  is  said:  "The  owner  may 
resist  the  entry  into  his  house,  l)ut  he  has  no  right  to  kill,  unless  it  be 
rendered  necessary  in  order  to  prevent  a  felonious  destruction  of  his 
property,  or  to  defend  himself  against  loss  of  life,  or  great  bodily  harm." 
Cited  2  Bishop  Crim.  Law,  §  707,  5th  ed.  That  case  impresses  us  dif- 
ferently from  what  it  does  the  learned  author,  as  indicated  by  his  remark 
prefacing  the  citation. 

As  developing  and  illustrating  the  prevailing  idea  of  the  law  as  to 
what  will  justify  homicide  se  et  sua  defendendo,  it  is  not  without  inter- 


352  STATE   V.   PATTERSON.  [CHAP.  IX. 

est  upon  the  point  now  under  consideration,  to  advert  to  what  is  said 
upon  the  general  subject.  In  McNall}',  562,  it  is  said:  "Tlie  injured 
party  may  repel  force  by  force  in  defence  of  his  person,  habitation,  or 
propertj',  against  one  who  manifestly  intendeth  and  endeavoreth  by 
violence  or  surprise  to  commit  a  known  felon}'  upon  either.  In  these 
cases  he  is  not  obliged  to  retreat,  but  may  pursue  his  adversary  until 
he  findeth  himself  out  of  danger ;  and  if  in  such  conflict  he  happeneth 
to  kill,  such  killing  is  justifiable."  Wharton  incorporates  this  into  his 
work  as  text.  The  same  is  found  in  the  older  books.  1  Hale  P.  C.  485, 
486  ;  also  in  Foster's  Crown  Law,  273  ;  1  Russell,  667  ;  and  in  other 
books,  ad  lib.  But  to  apprehend  this  in  its  true  scope  and  application, 
it  is  important  to  have  in  mind  what  is  said  in  1  Russell,  668:  "The 
rule  clearly  extends  only  to  cases  of  felony ;  for,  if  one  come  to  beat 
another,  or  take  his  goods  merely  as  a  trespasser,  though  the  owner 
may  justify  the  beating  of  him  so  far  as  to  make  him  desist,  3'et  if  he 
kill  him,  it  is  manslaughter.  .  .  .  No  assault,  however  violent,  will  jus- 
tify killing  the  assailant  under  a  plea  of  necessity,  unless  there  be  a 
manifestation  of  felonious  intent."  See  Archb.  Crim.  Law,  221,  cited 
9  C.  &  P.  24. 

This  covers  the  cases  of  statutory  justification  of  homicide,  both  under 
our  own,  and  under  the  English  statutes,  and,  in  principle,  and  in  rea- 
son, it  is  in  keeping  with  the  common  law  as  to  se  defendendo,  in  defining 
the  scope  of  which  in  this  respect,  it  is  well  laid  down  that,  "  before  a 
person  can  avail  himself  of  the  defence  that  he  used  a  weapon  in  defence 
of  his  life,  it  must  appear  that  that  defence  was  necessary  to  protect 
his  own  life,  or  to  protect  himself  from  such  serious  bodilj'  harm  as 
would  give  him  reasonable  apprehension  that  his  life  was  in  immediate 
danger."    1  Russell,  661. 

The  law  of  the  subject,  as  given  in  the  books  thus  cited  and  referred 
to,  seems  to  have  been  adequatel}'  apprehended  by  the  court,  and,  so 
far  as  we  can  judge  from  what  is  shown  by  the  record  before  us,  it  was 
not  administered  erroneously  or  improperly  in  the  trial,  as  against  the 
respondent. 

If  it  were  to  be  assumed  that  the  defence  might  legitimatel}-  claim 
that  there  was  an  assault  on  the  house,  with  the  intent  either  of  taking 
the  life  of  the  respondent  or  doing  to  him  great  bodily  harm,  the 
respondent  would  be  justified  in  using  a  deadly  weapon,  if  it  should  be 
necessary  in  order  to  prevent  the  perpetration  of  such  crime,  or  if, 
under  the  existing  circumstances  attending  the  emergency',  the  respond- 
ent had  reason  to  believe,  and  was  warranted  in  believing,  and,  in  fact, 
did  believe,  that  it  was  necessary  in  order  to  prevent  the  commission 
of  such  crime.  In  case  the  purpose  of  the  assailant  was  to  take  life, 
or  inflict  great  bodil}'  harm,  and  the  object  of  his  attack  (if  there  was 
such  attack)  upon  the  house  was  to  get  access  to  the  inmate  occupj'ing 
the  same,  for  such  purpose,  the  same  means  might  lawfull}'  be  used  to 
prevent  him  from  breaking  in  as  might  be  used  to  prevent  him  from 
making  the  harmful  assault  upon  the  person,  in  case  the  parties  were 


SECT.  VT.]  COMMONWEALTH   V.   DONAHUE.  353 

met  face  to  face  in  any  other  place.  In  either  case  the  point  of  justi- 
fication is  that  such  use  of  fatal  means  was  nccessar}-  in  order  to  the 
rightful,  effectual  protection  of  the  respondent,  or  his  family,  from  the 
threatened  or  impending  peril. 

We  have  been  led  to  this  discussion  and  exposition  of  the  law  as  to 
the  defence  of  the  dwelling-house,  on  account  of  the  somewhat  frag- 
mentary and  disjointed  condition  in  which  it  is  done  up  in  the  books 
and  cases  of  criminal  law,  and  for  the  purpose  of  rendering  as  explicit 
as  we  are  able  the  views  of  tliis  court  on  that  subject,  as  it  has  been 
brouglit  into  question  and  debate  in  the  case  in  hand.  In  this  exposi- 
tion, and  in  the  views  embodied  in  this  opinion,  all  the  members  of  the 
court  concur. 

The  other  subjects  involved  in  grounds  and  points  of  defence,  as 
shown  b}'  the  bill  of  exceptions,  and  upon  which  the  court  gave  instruc- 
tions to  the  jury,  do  not  seem  to  require  discussion. 

The  verdict  is  set  aside,  and  new  trial  granted. 


COMMONWEALTH  v.  DONAHUE. 
Supreme  Judicial  Court  of  Massachusetts.     1889. 

[Reported  148  Afnssachusetts,  529.] 

Holmes,  J.  This  is  an  indictment  for  robber}',  on  which  the  defend- 
ant has  been  found  guilty  of  an  assault.  The  evidence  for  the  Com- 
monwealth was,  that  the  defendant  had  bought  clothes,  amounting  to 
twent\"-one  dollars  and  fift^'-five  cents,  of  one  Mitchelman,  who  called 
at  the  defendant's  house,  b}'  appointment,  for  his  pay ;  that  some  dis- 
cussion arose  about  the  bill,  and  that  the  defendant  went  upstairs, 
brought  down  the  clothes,  placed  them  on  a  chair,  and  put  twenty 
dollars  on  a  table,  and  told  Mitchelman  that  he  could  have  the  money 
or  the  clothes ;  that  Mitchelman  took  the  monc}-  and  put  it  in  his 
pocket,  and  told  the  defendant  he  owed  him  one  dollar  and  fiftj'-five 
cents,  whereupon  the  defendant  demanded  his  money  back,  and  on 
Mitchelman  refusing,  attacked  him,  threw  him  on  the  floor,  and  choked 
him  until  Mitchelman  gave  him  a  pocketbook  containing  twenty-nine 
dollars.  The  defendant's  counsel  denied  the  receiving  of  the  pocket- 
book,  and  said  that  he  could  show  that  the  assault  was  justifiable, 
under  the  circumstances  of  the  case,  as  the  defendant  believed  that 
he  had  a  right  to  recover  his  own  money  by  force  if  necessarv.  The 
presiding  justice  stated  that  he  should  be  obliged  to  rule  that  the 
defendant  would  not  be  justified  in  assaulting  Mitchelman  to  get  his 
own  mone}',  and  that  he  should  rule  as  follows :  "If  the  jur}'  are  satis- 
fied that  the  defendant  choked  and  otherwise  assaulted  Mitchelman, 
they  would  be  warranted  in  finding  the  defendant  guilty,  although  the 
sole  motive  of  the  defendant  was  by  this  violence  to  get  from  MitcheK 

23 


354  COMMONWEALTH   V.    DONAHUE.  [CHAP.  IX. 

man  by  force  money  which  the  defendant  honestly  believed  to  be  his 
own."  Upon  this  the  defendant  saved  his  exceptions,  and  declined  to 
introduce  evidence ;  the  jury  were  instructed  as  stated,  and  found  the 
defendant  guilty. 

On  the  evidence  for  the  Commonwealth,  it  appeared,  or  at  the  lowest 
the  jury  might  have  found,  that  the  defendant  offered  the  twenty  dollars 
to  Mitchelman  only  on  condition  that  Mitchelman  should  accept  that 
sum  as  full  payment  of  his  disputed  bill,  and  that  Mitchelman  took  the 
money,  and  at  the  same  moment,  or  just  afterwards,  as  part  of  the 
same  transaction,  repudiated  the  condition.  If  this  was  the  case,  — 
since  Mitchelman,  of  course,  whatever  the  sum  due  him,  had  no  right 
to  that  particular  money  except  on  the  conditions  on  which  it  was 
offered  (Commonwealths.  Stebbins,  8  Gray,  492), — he  took  the  money 
wrongfully  from  the  possession  of  the  defendant,  or  the  jury  might 
have  found  that  he  did,  whether  the  true  view  be  that  the  defendant 
did  not  give  up  possession,  or  that  it  was  obtained  from  him  by  Mitchel- 
man's  fraud.  Commonwealth  v.  Devlin,  141  Mass.  423,  431  ;  Chisser's 
Case,  T.  Rayra.  275,  276  ;  Regina  v.  Thompson,  Leigh  &  Cave,  225  ; 
Regina  v.  Stanley,  12  Cox  C.  C.  269  ;  Regina  v.  Rod  way,  9  C.  &  P. 
784  ;  Rex  v.  Williams,  6  C.  &  P.  390 ;  2  East  P.  C.  c.  16,  ss.  110,  113. 
See  Regina  v.  Cohen,  2  Den.  C.  C.  249,  and  cases  m/m.  The  defend- 
ant made  a  demand,  if  that  was  necessary,  which  we  do  not  imply, 
before  using  force.  Green  v.  Goddard,  2  Salk.  641  ;  Polkinhorn  v. 
Wright,  8  Q.  B.  (N.  S.)  197;  Commonwealth  v.  Clark,  2  Met.  23,  25, 
and  cases  infra. 

It  is  settled  by  ancient  and  modern  authority  that,  under  such  cir- 
cumstances, a  man  may  defend  or  regain  his  momentarily  interrupted 
possession  by  the  use  of  reasonable  foi-ce,  short  of  wounding  or  the 
employment  of  a  dangerous  weapon.  Commonwealth  v.  Lynn,  123 
Mass.  218;  Commonwealth  v.  Kennard,  8  Pick.  133;  Anderson  v. 
State,  6  Baxter,  608;  State  v.  Elliot,  11  N.  H.  540,  545;  Rex  v. 
Milton,  Mood.  &  Malk.  107  ;  Y.  B.  9  Edw.  IV.  28,  pi.  42  ;  19  Hen.  VI. 
31,  pi.  59  ;  21  Hen.  VL  27,  pi.  9.  See  Seaman  v.  Cuppledick,  Owen, 
150  ;  Taylor  v.  Markham,  Cro.  Jac.  224  ;  s.  c.  Yelv.  157,  and  1  Brownl. 
215  ;  Shingleton  v.  Smith,  Lntw.  1481,  1483  ;  2  Inst.  316  ;  Finch,  Law, 
203  ;  2  Hawk.  P.  C  c.  60,  s.  23  ;  3  Bl.  Com.  121.  To  this  extent  the 
right  to  protect  one's  possession  has  been  regarded  as  an  extension  of 
the  right  to  protect  one's  person,  with  which  it  is  generally  mentioned. 
Baldwin  v.  Hayden,  6  Conn.  453  ;  Y.  B.  19  Hen.  VI.  31,  pL  59  ;  Rogers 
tf.  Spence,  13  M.  &  W.  571,  581  ;  2  Hawk.  P.  C.  c.  60,  s.  23 ;  3  Bl. 
Com.  120,  131. 

We  need  not  consider  whether  this  explanation  is  quite  adequate. 
There  are  weighty  decisions  which  go  further  than  those  above  cited, 
and  which  hardly  can  stand  on  the  right  of  self-defence,  but  involve 
other  considerations  of  policy.  It  has  been  held  that,  even  where  a 
considerable  time  had  elapsed  between  the  wrongful  taking  of  the 
defendant's  property  and  the  assault,  the  defendant  had  a  right  to 


SECT.  VI.]  COMMONWEALTH   V.    DONAHUE.  355 

regain  possession  by  reasonable  force,  after  demand  upon  the  third 
person  in  possession,  in  like  manner  as  he  might  have  protected  it 
without  civil  liability.  Whatever  the  true  rule  may  be,  probably  there 
is  no  difference  in  this  respect  between  the  civil  and  the  criminal  law. 
Blades  V.  Higgs,  10  C.  B.  (N.  S.)  713  ;  12  C.  B.  (N.  S.)  501  ;  13  C.  B. 
(N.  S.)  844;  and  11  II.  L.  Cas.  621;  Commonwealth  v.  McCue,  16 
(Jrav,  226,  227.  The  principle  has  been  extended  to  a  case  where  the 
defendant  had  yielded  possession  to  the  person  assaulted,  through  the 
fraud  of  the  latter.  Hodgeden  v.  Hubbard,  18  Vt.  504.  See  Johnson 
f.  Terry,  56  Vt.  706.  On  the  other  hand,  a  distinction  has  been  taken 
between  the  right  to  maintain  possession  and  the  right  to  regain  it 
from  another  who  is  peaceably  established  in  it,  although  the  possession 
of  the  latter  is  wrongful.  Bobb  v.  Bosworth,  Litt.  Sel.  Cas.  81.  See 
Barnes  v.  Martin,  15  Wis.  240 ;  Andre  v.  Johnson,  G  Blackf.  375; 
Davis  V.  Whitridge,  2  Strobh.  232  ;  3  Bl.  Com.  4.  It  is  unnecessary 
to  decide  whether,  in  this  case,  if  Mitchelman  had  taken  the  money 
with  a  fraudulent  intent,  but  had  not  repudiated  the  condition  until 
afterwards,  the  defendant  would  have  had  any  other  remedy  than  to 
hold  him  to  his  bargain  if  he  could,  even  if  he  knew  that  Mitchelman 
still  had  the  identical  money  upon  his  person. 

If  the  force  used  by  the  defendant  was  excessive,  the  jury  would 
have  been  warranted  in  finding  him  guilty.  Whether  it  was  excessive 
or  not  was  a  question  for  them  ;  the  judge  could  not  rule  that  it  was 
not,  as  matter  of  law.  Commonwealth  v.  Clark,  2  Met.  23.  Therefore 
the  instruction  given  to  them,  taken  only  literally,  was  correct.  But 
the  preliminary  statement  went  further,  and  was  erroneous  ;  and  coup- 
ling that  statement  with  the  defendant's  offer  of  proof,  and  his  course 
after  the  rulings,  we  think  it  fair  to  assume  that  the  instruction  was  not 
understood  to  be  limited,  or,  indeed,  to  be  directed  to  the  case  of 
excessive  force,  which,  so  far  as  appears,  had  not  been  mentioned,  but 
that  it  was  intended  and  understood  to  mean  that  any  assault  to  regain 
his  own  money  would  warrant  finding  the  defendant  guilty.  Therefore 
the  exceptions  must  be  sustained. 

It  will  be  seen  that  our  decision  is  irrespective  of  the  defendant's 
belief  as  to  what  he  had  a  right  to  do.  If  the  charge  of  robbery  had 
been  persisted  in,  and  the  difficulties  which  we  have  stated  could  have 
been  got  over,  we  might  have  had  to  consider  cases  like  Regina  v. 
Boden,  1  C.  &  K.  395,  397  ;  Regina  v.  Hemmings,  4  F.  &  F.  50  ; 
State  V.  Holly  way,  41  Iowa,  200.  Compare  Commonwealth  v.  Steb- 
bins,  8  Gray,  492  ;  Commonwealth  v.  McDuffy,  126  Mass.  4G7.  There 
is  no  question  here  of  the  effect  of  a  reasonable  but  mistaken  belief 
with  regard  to  the  facts.  State  v.  Nash,  88  N.  C.  618.  The  facts  were 
as  the  defendant  believed  them  to  be.  deceptions  sxistained. 


356  EEGINA   V.   B AMBER.  [CHAP.  IX. 

SECTION  VII. 

Necessity, 

Bacon,  Maxims,  reg.  5.  If  a  man  steal  viands  to  satisfy  his  present 
hunger,  this  is  no  felony  nor  larceny.  So  if  divers  be  in  danger  of 
drowning  by  the  casting  away  of  some  boat  or  bark,  and  one  of  them 
get  to  some  plank,  or  on  the  boat  side  to  keep  himself  above  water, 
and  another  to  save  his  life  thrust  him  from  it,  whereb}^  he  is  drowned, 
this  is  neither  se  defendendo  nor  by  misadventure,  but  justifiable.  So 
if  divers  felons  be  in  a  gaol,  and  the  gaol  by  casualt}-  is  set  on  fire, 
whei'eb}'  the  prisoners  get  forth,  this  is  no  escape,  nor  breaking  of 
prison.  So  upon  the  statute  that  everj'  merchant  that  setteth  his 
mercliandise  on  land  without  satisfj'ing  the  customer  or  agreeing  for 
it  (which  agreement  is  construed  to  be  in  certainty),  shall  forfeit  his 
merchandise ;  and  it  is  so  that  b}'  tempest  a  great  quantit}'  of  the 
merchandise  is  cast  overboard,  whereby  the  merchant  agrees  with 
the  customer  by  estimation,  which  falleth  out  short  of  the  truth ;  yet 
the  over  quantity  is  not  forfeited,  b}"  reason  of  the  necessity ;  where 
note  that  necessity  dispenseth  with  the  direct  letter  of  a  statute  law. 


REGINA  V.   BAMBER. 
Queen's  Bench.     1843. 

[Reported  5  Queen's  Bench,  279.] 

Lord  Denman,  C.  J.'  I  think  the  defendant  below  is  entitled  to 
judgment.  Both  the  road  which  the  defendant  is  charged  with  liability 
to  repair  and  the  land  over  which  it  passes  are  washed  away  by  the 
sea.  To  restore  the  road,  as  he  is  required  to  do,  he  must  create  a 
part  of  the  earth  anew.  I  do  not  rel}"  much  upon  the  argument  that 
the  ancient  line  of  highway  has  been  removed.  But  here  all  the  mate- 
rials of  which  a  road  could  be  made  have  been  swept  awaj'  by  the  act 
of  God.  Under  those  circumstances  can  the  defendant  be  liable  for 
not  repairing  the  road  ?  We  want  an  authority  for  such  a  proposition, 
and  none  has  been  found. 

1  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 


SECT.  VII.]  REGINA   V.    DUDLEY.  357 

REGINA  V.   DUDLEY.  j  ^'^ 

Queen's  Bench  Division.     1884. 
[Reported  15  Cox  C.  V.  624,  14  Q.  B.  D.  273.] 

Lord  Coleridge,  C.  J.*  The  two  prisoners,  Thomas  Dudley  and 
Edwin  Stephens,  were  indicted  for  the  murder  of  Richard  Parker  on 
the  liigh  seas  on  the  "iotli  day  of  July  in  the  present  year.  They  were 
tried  before  my  brother  ILiddleston  at  Exeter  on  the  Gth  day  of 
November,  and  under  the  direction  of  my  learned  brother,  the  jury 
returned  a  special  verdict,  the  legal  effect  of  which  has  been  argued 
before  us,  and  on  which  we  are  now  to  pronounce  judgment.  The 
special  verdict  is  as  follows.  \_The  learned  judge  read  the  special 
verdict.']  From  these  facts,  stated  with  the  cold  precision  of  a  special 
verdict,  it  appears  sufficiently  that  the  prisoners  were  subject  to  ter- 
rible temptation  and  to  sufferings  which  might  break  down  the  bodily 
power  of  the  strongest  man  and  try  the  conscience  of  the  best.  Other 
details  yet  more  harrowing,  facts  still  more  loathsome  and  appalling, 
were  presented  to  the  jury,  and  are  to  be  found  recorded  in  my  learned 
brother's  notes ;  but  nevertheless  this  is  clear,  —  that  the  prisoners 
put  to  death  a  weak  and  unoffending  boy  upon  the  chance  of  preserv- 
ing their  own  lives  by  feeding  upon  his  flesh  and  blood  after  he  was 
killed,  and  with  a  certainty  of  depriving  him  of  any  possible  chance 
of  survival.  The  verdict  finds  in  terms  that  "  if  the  men  had  not  fed 
upon  the  body  of  the  boy,  they  would  probably  not  have  survived," 
and  that  "  the  boy,  being  in  a  much  weaker  condition,  was  likely  to 
have  died  before  them."  They  might  possibly  have  been  picked  up 
next  day  by  a  passing  ship ;  they  might  possibly  not  have  been  picked 
up  at  all ;  in  either  case  it  is  obvious  that  the  killing  of  the  boy  would 
have  been  an  unnecessary  and  profitless  act.  It  is  found  by  the  ver- 
dict that  the  boy  was  incapable  of  resistance,  and,  in  fact,  made  none  ; 
and  it  is  not  even  suggested  that  his  death  was  due  to  any  violence  on 
his  part  attemi)ted  against,  or  even  so  much  as  feared  b}",  them  who 
killed  him.  Under  these  circumstances  the  jury  say  they  are  ignorant 
whether  those  who  killed  him  were  guilty  of  murder,  and  have  referred 
it  to  this  court  to  say  what  is  the  legal  consequence  which  follows 
from  the  facts  which  they  have  found.  There  remains  to  be  consid- 
ered the  real  question  in  the  case,  whether  killing,  under  the  circum- 
stances set  forth  in  the  verdict,  be  or  be  not  murder.  The  contention 
that  it  could  be  anything  else  was  to  the  minds  of  us  all  both  new  and 
strange ;  and  we  stopped  the  Attorney-General  in  his  negative  argu- 
ment that  we  might  hear  what  could  be  said  in  support  of  a  proposi- 
tion which  appeared  to  us  to  be  at  once  dangerous,  immoral,  and 
opposed  to  all  legal  principle  and  analogy.     All,  no  doubt,  that  caa 

1  Part  of  the  oinuiou  only  is  given. 


358  EEGINA   V.   DUDLEY.  [CHAP.  IX. 

be  said  has  been  urged  before  us,  and  we  are  now  to  consider  and 
determine  what  it  amounts  to.  First,  it  is  said  that  it  follows,  from 
various  definitions  of  murder  in  books  of  authority'  —  which  definitions 
imply,  if  they  do  not  state,  the  doctrine  —  that,  in  order  to  save  your 
own  life  you  may  lawfully  take  away  the  life  of  another,  when  that 
other  is  neither  attempting  nor  threatening  3'ours,  nor  is  guilty  of  any 
illegal  act  whatever  towards  you  or  any  one  else.  But  if  these  defini- 
tions be  looked  at,  they  will  not  be  found  to  sustain  the  contention. 
The  earliest  in  point  of  date  is  the  passage  cited  to  us  from  Bracton, 
who  wrote  in  the  reign  of  Henry  III.  It  was  at  one  time  the  fashion 
to  discredit  Bracton,  as  Mr.  Reeves  tells  us,  because  he  was  supposed 
to  mingle  too  much  of  the  canonist  and  civilian  with  the  common 
lawyer.  There  is  now  no  such  feeling ;  but  the  passage  upon  homi- 
cide, on  which  reliance  is  placed,  is  a  remarkable  example  of  the  kind 
of  writing  which  may  explain  it.  Sin  and  crime  are  spoken  of  as 
apparently  equally  illegal ;  and  the  crime  of  murder,  it  is  expressl}' 
declared,  may  be  committed  lingua  vel  facto ;  so  that  a  man  like 
Hero,  "  done  to  death  b}'  slanderous  tongues,"  would,  it  seems,  in  the 
opinion  of  Bracton,  be  a  person  in  respect  of  whom  might  be  grounded 
a  legal  indictment  for  murder.  But  in  the  very  passage  as  to  nccessit}' 
on  which  reliance  has  been  placed,  it  is  clear  that  Bracton  is  speaking 
of  necessity  in  the  ordinar}-  sense,  —  the  repelling  b}*  violence,  vio- 
lence justified  so  far  as  it  was  necessar}'  for  the  object,  any  illegal 
violence  used  towards  one's  self  If,  says  Bracton  (Lib.  iii.  Art.  De 
Corona,  cap.  4,  fol.  120),  the  necessity  be  evitabilis  et  evadere  posset 
absque  occisione^  tunc  erit  reus  homicidii,  —  words  which  show  clearl}' 
that  he  is  thinking  of  physical  danger,  from  which  escape  may  be  pos- 
sible, and  that  inevitahilis  necessitas,  of  which  he  speaks  as  justifying 
homicide,  is  a  necessity  of  the  same  nature.  It  is,  if  possible,  yet 
clearer  that  the  doctrine  contended  for  receives  no  support  from  the 
great  authority  of  Lord  Hale.  It  is  plain  that  in  his  view  the  necessity 
which  justifies  homicide  is  that  only  which  has  always  been,  and  is 
now,  considered  a  justification,  "  In  all  these  cases  of  homicide  by 
necessity,"  says  he,  '•  as  in  pursuit  of  a  felon,  in  killing  him  that 
assaults  to  rob,  or  comes  to  burn  or  break  a  house,  or  the  like,  which 
are  in  themselves  no  felony"  (1  Hale  P.  C.  491).  Again,  he  says 
that  the  necessity  which  justifies  homicide  is  of  two  kinds  :  "  (1)  That 
necessity  which  is  of  a  private  nature ;  (2)  That  necessity  which  re- 
lates to  the  public  justice  and  safety.  The  former  is  that  necessity 
which  obligeth  a  man  to  his  own  defence  and  safeguard ;  and  this 
takes  in  these  inquiries  :  (1)  What  may  be  done  for  the  safeguard  of  a 
man's  own  life,"  —  and  then  follow  three  other  heads  not  necessary  to 
pursue.  Then  Lord  Hale  proceeds:  "(1)  As  touching  the  first  of 
these,  namely,  homicide  in  defence  of  a  man's  own  life,  which  is  usually 
styled  se  defendendo  "  (1  Hale  P.  C.  478).  It  is  not  possible  to  use 
words  more  clear  to  show  that  Lord  Hale  regarded  the  private  neces- 
sity which  justified;  and  alone  justified,  the  taking  the  life  of  another 


SECT.  VII.]  EEGINA.   V.   DUDLEY.  359 

for  the  safeguard  of  one's  own  to  be  what  is  commonly  called  self- 
defence,  lint  if  this  could  be  even  doubtful  upon  Lord  Hale's  words, 
Lord  Hale  himself  has  made  it  clear ;  for  in  the  chapter  in  which  he 
deals  with  the  exemption  created  by  compulsion  or  necessity,  he  thus 
expresses  himself:  "  If  a  man  be  desperately  assaulted  and  in  peril  of 
death  and  cannot  otherwise  escape,  unless  to  satisfy  his  assailant's 
fury  he  will  kill  an  innocent  person  tlien  present,  the  fear  and  actual 
force  will  not  acquit  him  of  the  crime  and  punishment  of  murder  if  he 
commit  the  fact,  for  he  ought  rather  to  die  himself  than  to  kill  an 
innocent ;  but  if  he  cannot  otherwise  save  his  own  Ufe,  the  law  permits 
him  in  his  own  defence  to  kill  the  assailant,  for,  by  the  violence  of  the 
assault  and  the  offence  committed  upon  him  by  the  assailant  himself, 
the  law  of  nature  and  necessity  hath  made  him  his  own  protector  cum 
debito  moderamine  biculpatm  tuteloi  (1  Hale  P.  C.  51).  But,  further 
still :  Lord  Hale  in  the  following  chapter  deals  with  the  position  as- 
serted by  the  casuists  and  sanctioned,  as  he  says,  by  Grotius  and  Puf- 
fendorf,  that  in  a  case  of  extreme  necessity,  either  of  hunger  or  cloth- 
ing, '•  theft  is  no  theft,  or  at  least  not  punishable  as  theft;  and  some 
even  of  our  own  lawyers  have  asserted  the  same  ;  "  "  but,"  says  Lord 
Hale,  ''I  take  it  that  here  in  England  that  rule,  at  least  by  the  laws 
of  England,  is  false ;  and  therefore  if  a  person,  being  under  necessity 
for  want  of  victuals  or  clothes,  shall  upon  that  account  clandestinely 
and  anhno  farandi  steal  another  man's  goods,  it  is  a  felony  and  a 
crime  by  the  laws  of  England  punishable  with  death  "  (1  Hale  P.  C 
54).  If  therefore  Lord  Hale  is  clear,  as  he  is,  that  extreme  necessity 
of  hunger  does  not  justify  larceny,  what  would  he  have  said  to  the 
doctrine  that  it  justified  murder?  It  is  satisfactory  to  find  that  an- 
other great  authority,  second  probably  only  to  Lord  Hale,  speaks  with 
the  same  unhesitating  clearness  on  this  matter.  Sir  Michael  Foster,  in 
the  third  chapter  of  his  "Discourse  on  Homicide,"  deals  with  the  sub- 
ject of  Homicide  Founded  in  Necessity ;  and  the  whole  chapter  im- 
plies, and  is  insensible  unless  it  does  imply,  that  in  the  view  of  Sir 
Michael  Foster,  necessity  and  self-defence  (which  in  section  1  he 
defines  as  "opposing  force  to  force  even  to  the  death")  are  con- 
vertible terms.  There  is  no  hint,  no  trace  of  the  doctrine  now  con- 
tended for ;  the  whole  reasoning  of  the  chapter  is  entireh'  inconsistent 
with  it. 

In  East  (1  East  P.  C.  271),  the  whole  chapter  on  Homicide  by  Ne- 
cessity is  taken  up  with  an  elaborate  discussion  of  the  limits  within 
which  necessity  —  in  Sir  Michael  Foster's  sense  (given  above)  —  of 
self-defence  is  a  justification  of  or  excuse  for  homicide.  There  is  a 
short  section  at  the  end  (p.  294)  very  generally  and  very  doubtfully 
expressed,  in  which  the  only  instance  discussed  is  the  well-known  one 
of  two  shipwrecked  men  on  a  plank  able  to  sustain  only  one  of  them  ; 
and  the  conclusion  is  left  by  Sir  Edward  East  entirely  undetermined. 
What  is  true  of  Sir  Edward  East  is  true  also  of  Mr.  Serjeant  Haw- 
kins.    The  whole  of  his  chapter  on  Justifiable  Homicide  assumes  that 


360  REGINA   V.    DUDLEY.  [CHAP.  IX. 

the  only  justifiable  homicide  of  a  private  nature  is  in  defence  against 
force  of  a  man's  person,  house,  or  goods.  In  the  26th  section  we  find 
again  the  case  of  the  two  shipwrecked  men  and  the  single  plank,  with 
this  significant  expression  from  a  careful  writer :  "  It  is  said  to  be  jus- 
tifiable." So,  too,  Dalton,  c.  150,  clearly  considers  necessity  and 
self-defence,  in  Sir  Michael  Foster's  sense  of  that  expression,  to  be 
convertible  terms,  —  though  he  prints  without  comment  Lord  Bacon's 
instance  of  the  two  men  on  one  plank  as  a  quotation  from  Lord  Bacon, 
adding  nothing  whatever  to  it  of  his  own ;  and  there  is  a  remarkable 
passage  at  page  339,  in  which  he  says  that  even  in  the  case  of  a  mur- 
derous assault  upon  a  man,  yet  before  he  maj-  take  the  life  of  the  man 
who  assaults  him,  even  in  self-defence,  cuncta  2)^ius  te?itcmda.  The 
passage  in  Staundforde,  on  which  almost  the  whole  of  the  dicta  we 
have  been  considering  are  built,  when  it  comes  to  be  examined,  does 
not  warrant  the  conclusion  which  has  been  derived  from  it.  The 
necessit}'  to  justify  homicide  must  be,  he  says,  inevitable ;  and  the 
example  which  he  gives  to  illustrate  his  meaning  is  the  ver}'  same 
which  has  just  been  cited  from  Dalton,  showing  that  the  necessit}'  he 
was  speaking  of  was  a  physical  necessit}-  and  the  self-defence  a  defence 
against  physical  violence.  Russell  merel}'  repeats  the  language  of  the 
old  text-books  and  adds  no  new  authority'  nor  any  fresh  considerations. 
Is  there,  then,  an}'  authority  for  the  proposition  which  has  been  pre- 
sented to  us  ?  Decided  cases  there  are  none.  The  case  of  the  seven 
English  sailors  referred  to  b}'  the  commentator  on  Grotius  and  by 
Puffendorf  has  been  discovered  b}'  a  gentleman  of  the  Bar  —  who 
communicated  with  m^'  brother  Huddleston  — to  conve}'  the  authority, 
if  it  conveys  so  much,  of  a  single  judge  of  the  island  of  St.  Kitts, 
when  that  island  was  possessed  partlv  b}'  France  and  partly  b}-  this 
country,  somewhere  about  the  3'ear  IG-iL  It  is  mentioned  in  a  medical 
treatise  published  at  Amsterdam,  and  is  altogether,  as  authorit}'  in  an 
Englisii  court,  as  unsatisfactory'  as  possible.  The  American  case 
cited  by  m}'  brother  Stephen  in  his  digest  from  Wharton  on  Homicide, 
page  237,  in  which  it  was  decided,  correctly,  indeed,  that  sailors  had 
no  right  to  throw  passengers  overboard  to  save  themselves,  but  on  the 
somewhat  strange  ground  that  the  proper  mode  of  determining  who 
was  to  be  sacrificed  was  to  vote  upon  the  subject  b}'  ballot,  can 
hardly,  as  my  brother  Stephen  says,  be  an  authority  satisfactory  to  a 
court  in  this  countr^'.^     The  observations  of  Lord  Mansfield  in  the 

1  "The  case  does  not  become  'a  case  of  necessity'  unless  all  ordinary  means  of  self- 
preservation  have  been  exhausted.  The  peril  must  be  instant,  overwhelming ;  leaWng 
no  alternative  but  to  lose  our  own  life,  or  to  take  the  life  of  another  person.  .  .  .  For 
example :  suppose  that  two  persons  who  owe  no  duty  to  one  another  that  is  not  mutual 
should,  by  accident  not  attributable  to  either,  be  placed  in  a  situation  where  both 
cannot  survive.  Neither  is  bound  to  save  the  other's  life  by  sacrificing  his  own  ;  nor 
would  either  commit  a  crime  in  saving  his  own  life  in  a  struggle  for  the  only  means 
of  safety.  But  in  applying  this  law,  we  must  look  not  only  to  the  jeopardy  in  which 
the  parties  are,  but  also  to  the  relations  in  which  they  stand.  The  slayer  must  be 
under  no  obligation  to  make  his  own  safety  secondary  to  the  safety  of  others.  .  .  . 


SECT.  VII.]  REGINA  V.   DUDLEY.  361 

case  of  Rex  v.  Stratton  and  others  (21  St.  Tr.  1045),  striking  and 
excellent  as  tliey  are,  were  delivered  in  a  political  trial,  where  the 
question  was  whether  a  political  necessity  had  arisen  for  deposing  a 
governor  of  Madras.  But  they  have  little  application  to  the  case 
before  us,  which  must  be  decided  on  very  ditferent  considerations.' 
The  one  real  authority  of  former  times  is  Lord  Bacon,  who  in  his  com- 
mentary on  the  maxim,  Necessitas  inducit  lirivilegium  quoad  jura 
privata,  lays  down  the  law  as  follows:  "Necessity  carrieth  a  privi- 
lege in  itself.  Necessity  is  of  three  sorts,  —  necessity  of  conservation 
of  life,  necessity  of  obedience,  and  necessity  of  the  act  of  God  or  of  a 
stranger.  First,  of  conservation  of  life.  If  a  man  steals  viands  to 
satisfy  his  present  hunger,  this  is  no  felony  nor  larceny.  So  if  divers 
be  in  danger  of  drowning  by  the  casting  away  of  some  boat  or  barge, 
and  one  of  them  get  to  some  plank,  or  on  the  boat's  side,  to  keep  him- 
self above  water,  and  another  to  save  his  life  thrust  him  from  it, 
whereby  he  is  drowned,  this  is  neither  se  defendendo  nor  by  misad- 
venture, but  justifiable."  On  this  it  is  to  be  observed  that  Lord 
Bacon's  proposition  that  stealing  to  satisfy  hunger  is  no  larceny  is 
hardly  supported  by  Staundforde,  whom  he  cites  for  it,  and  is  ex- 
pressly contradicted  by  Lord  Hale  in  the  passage  already  cited.  And 
for  the  proposition  as  to  the  plank  or  boat,  it  is  said  to  be  derived 
from  the  canonists ;  at  any  rate  he  cites  no  authority  for  it,  and  it 
must  stand  upon  his  own.  Lord  Bacon  was  great  even  as  a  lawyer ; 
but  it  is  permissible  to  much  smaller  men,  relying  upon  principle  and 
on  the  authority  of  others  the  equals  and  even  the  superiors  of  Lord 
Bacon  as  lawyers,  to  question  the  soundness  of  his  dictum.     There 

The  passenger  stands  in  a  position  different  from  that  of  the  officers  and  seamen  ;  it 
is  the  sailor  who  must  encounter  the  hardships  and  perils  of  the  voyage.  .  .  .  The 
captain,  indeed,  and  a  sufficient  number  of  seamen  to  navigate  the  boat,  must  be 
preserved.  .  .  .  This  rule  may  be  deemed  a  harsh  one  towards  the  sailor,  who  may 
thus  far  have  done  his  duty;  but  when  the  danger  is  so  extreme  that  the  only  hope  is 
in  sacrificing  either  a  sailor  or  a  passenger,  any  alternative  is  hard  ;  and  would  it  not 
be  the  hardest  of  any,  to  sacrifice  a  passenger  in  order  to  save  a  supernumerary  sailor  ? 
.  .  .  When  the  ship  is  in  no  danger  of  sinking,  but  all  sustenance  is  exhausted,  and 
a  sacrifice  of  one  person  is  necessary  to  appease  the  hunger  of  others,  the  selection  is 
by  lot.  This  mode  is  resorted  to  as  the  fairest  mode  ;  and,  in  some  sort,  as  an  appeal 
to  God  for  the  selection  of  the  victim."  —  Baldwin,  J.  (to  the  jury)  in  United  States 
V.  Holmes,  1  Wall.  Jun.  1,  22.  j 

i  "  Wherever  necessity  forces  a  man  to  do  an  illegal  act,  forces  him  to  do  it,  it  justi- ' 
lies  him,  because  no  man  can  be  guilty  of  a  crime  without  the  will  and  intention  of  his 
mind.  It  must  be  voluntary ;  therefore  a  madman  cannot  commit  a  crime.  A  man 
who  is  absolutely  by  natural  necessity  forced,  his  will  does  not  go  along  with  the  act  ; 
and  therefore  in  the  case  of  natural  necessity  (and,  by  the  by,  whenever  a  question 
turns  upon  natural  necessity  it  is  a  question  to  be  determined  by  a  jury,  and  by  a 
jury  only  ;  it  is  a  question  upon  fact  and  the  degree  of  fact)  if  a  man  is  forced  to  com- 
mit acts  of  high  treason,  if  it  appears  really  force,  and  such  as  human  nature  could 
not  be  expected  to  resist,  and  the  jury  are  of  that  opinion,  the  man  is  not  then  guilty 
of  high  treason.  In  a  case  of  homicide,  if  a  man  was  attacked,  and  in  danger,  and 
so  on  in  a  variety  of  instances,  natural  necessity  certainly  justifies."  —  Lord  Mans* 
FIELD  (to  the  jury)  in  Rex  v.  Stratton,  21  How.  St.  Tr.  1045,  1223. 


362  REGINA   V.   DUDLEY.  [CHAP.  IX. 

are  many  conceivable  states  of  things  in  which  it  might  possibl}-  be 
true  ;  but  if  Lord  Bacon  meant  to  lay  clown  the  broad  proposition  that 
a  man  may  save  his  life  by  killing,  if  necessary,  an  innocent  and  un- 
offending neighbor,  it  certainly  is  not  law  at  the  present  day.     There 
remains  the  authority  of  my  brother  Stephen,  who  both  in  his  Digest 
(Art.  32)  and  in  his  "  History  of  tiie  Criminal  Law  "  (vol.  ii.  p.  108), 
uses  language  perhaps  wide  enough  to  cover  this  case.     The  language 
is  somewhat  vague  in  both  places,  but  it  does  not  in  either  place  cover 
this  case  of  necessity-,  and  we  have  the  best  authority  for  saying  that 
it  was  not  meant  to  cover  it.     If  it  had  been  necessary,  we  must  with 
true  deference  have  differed  from  him  ;  but  it  is  satisfactory  to  know 
that  we  have,  probably  at  least,  arrived  at  no  conclusion  in  which,  if 
he  had  been  a  member  of  the  court,  he  would  have  been  unable  to 
agree.     Neither  are  we  in  conflict  with  any  opinion  expressed  upon  this 
subject  by  the  learned  persons  who  formed  the  Commission  for  prepar- 
ing the  Criminal  Code.     They  say  on  this  subject:  "  We  are  not  pre- 
pared to  suggest  that  necessity  should  in  every  case  be  a  justification  ; 
we  are  equally  unprepared  to  suggest  that  necessity  should  in  no  case 
be  a  defence.    We  judge  it  better  to  leave  such  questions  to  be  dealt  with 
when,  if  ever,  they  arise  in  practice,  by  applying  the  principles  of  law  to 
the  circumstances  of  the  particular  case."     It  would  have  been  satisfac- 
tory to  us  if  these  eminent  persons  could  have  told  us  whether  the 
received  definitions  of  legal  necessity  were  in  their  judgment  correct 
and  exhaustive,  and,  if  not,  in  what  way  they  should   be  amended ; 
but  as  it  is  we  have,  as  they  say,  "  to  apply  the  principles  of  law  to 
the  circumstances  of  this  particular  case."     Now,  except  for  the  pur- 
pose of  testing  how  far  the  conservation  of  a  man's  own  life  is  in  all 
cases  and  under  all  circumstances  an  absolute,  unqualified,  and  para- 
mount duty,  we  exclude  from  our  consideration  all  the  incidents  of 
war.     We  are  dealing   with  a  case  of  private  homicide,  not  one  im- 
posed upon  men  in  the  service  of  their  sovereign  or  in  the  defence  of 
their  country.     Now  it  is  admitted  that  the  deliberate  killing  of  this 
unoffending  and  unresisting  boy  was  clearly  murder,  unless  the  killing 
can  be  justified  by  some  well-recognized  excuse  admitted  by  the  law. 
It  is  further  admitted  that  there  was  in  this  case  no  such  excuse,  un- 
less the  killing  was  justified  by  what  has  been  called  necessity.     But 
the  temptation  to  the  act  which  existed  here  was  not  what  the  law  has 
ever  called  necessity.     Nor  is  this  to  be  regretted.     Though  law  and 
morality  are  not  the  same,  and  though  many  things  may  be  immoral 
which  are  not  necessarily  illegal,  yet  the  absolute  divorce  of  law  from 
morality  would  be  of  fatal  consequence,  and  such  divorce  would  follow 
if  the  temptation  to  murder  in  this  case  were  to  be  held  by  law  an 
absolute  defence  of  it.     It  is  not  so.     To  preserve  one's  life  is,  gener- 
ally speaking,  a  duty  ;  but  it  may  be  the  plainest  and  the  highest  duty 
to  sacrifice  it.     War  is  full  of  instances  in  which  it  is  a  man's  duty  not 
to  live,  but  to  die.     The  duty,  in  case  of  shipwreck,  of  a  captain  to 
his  crew,  of  the  crew  to   the  passengers,  of  soldiers  to  women  and 


SECT.  VII.]  REGINA   V.    DUDLEY.  363 

chiklrcii,  as  iu  the  noble  case  of  the  "  Bhkeuhcad,"  —  these  duties 
impose  on  men  the  moral  necessity,  not  of  the  preservation,  but  of  the 
sacrilice,  of  their  lives  for  others,  from  which  in  no  country  —  least  of 
all,  it  is  to  be  hoped,  in  Kiighind — will  men  ever  shrink,  as  indeed 
they  have  not  shrunk.  It  is  not  correct,  therefore,  to  say  that  there 
is  any  absolute  and  unciualilied  necessity  to  preserve  one's  life.  "Neccs- 
se  est  ut  earn,  iion  ut  vioam"  is  a  saying  of  a  Kouiau  oflicer  quoted 
by  Lord  Ikicon  himself  with  high  eulogy  in  the  very  chapter  on  Ne- 
cessity to  which  so  much  reference  has  been  made.  It  would  be  a 
very  easy  and  cheap  display  of  CDnimonplace  learning  to  quote  from 
Greek  and  Latin  authors,  —  from  Horace,  from  Juvenal,  from  Cicero, 
from  Euripides,  —  passage  after  passage  in  which  the  duty  of  dying 
for  others  has  l)een  laid  down  in  glowing  and  emphatic  language  as 
resulting  from  the  principles  of  heathen  ethics.  It  is  enough  in  a 
Christian  country  to  remind  ourselves  of  'the  Great  Example  wliicli 
we  profess  to  follow.  It  is  not  needful  to  point  out  the  awful  danger 
of  admitting  the  principle  which  has  been  contended  for.  Who  is  to 
be  the  judge  of  this  sort  of  necessity?  By  what  measure  is  the  com- 
parative value  of  lives  to  be  measured?  Is  it  to  be  strength,  or  intel- 
lect, or  what?  It  is  plain  that  the  principle  leaves  to  him  who  is  to 
profit  by  it  to  determine  the  necessity  which  will  justify  him  in  delib- 
erately taking  another's  life  to  save  his  own.  Iu  this  case  the  weakest, 
the  youngest,  the  most  unresisting  was  chosen.  Was  it  more  neces- 
sary to  kill  him  than  one  of  the  grown  men?     The  answer  must  be,  No. 

"  So  spake  the  Fieml  ;  and  with  necessity, 
The  tyrant's  plea,  excused  his  devilish  deeds." 

It  is  not  suggested  that  iu  this  particular  case  the  "deeds"  were 
"  devilish  ;  "  but  it  is  quite  plain  that  such  a  principle,  once  admitted, 
might  be  made  the  legal  cloak  for  unbridled  passion  and  atrocious 
crime.  There  is  no  path  safe  for  judges  to  tread  but  to  ascertain  the 
law  to  the  best  of  their  ability  and  to  declare  it  according  to  their 
judgment,  and  if  in  any  case  the  law  appears  to  be  too  severe  on  indi- 
viduals, to  leave  it  to  the  Sovereign  to  exercise  that  prerogative  of 
mercy  which  the  Constitution  has  entrusted  to  the  hands  fittest  to 
dispense  it.  It  must  not  be  supposed  that,  in  refusing  to  admit  temp- 
tation to  be  an  excuse  for  crime,  it  is  forgotten  how  terrible  the  temp- 
tation was,  how  awful  the  sufTering,  how  hard  in  such  trials  to  keep 
the  judgment  straight  and  the  conduct  pure.  We  are  often  compelled 
to  set  up  standards  we  cannot  reach  ourselves  and  to  la}'  down  rules 
which  we  could  not  ourselves  satisf}'.  But  a  man  has  no  right  to 
declare  temptation  to  be  an  excuse,  though  he  might  himself  have 
yielded  to  it,  nor  allow  compassion  for  the  criminal  to  change  or 
weaken  in  any  manner  the  legal  definition  of  the  crime.  It  is  there- 
fore our  duty  to  declare  th.at  the  prisoners*  act  in  this  case  was  wilful 
murder;  that  the  Aicts  as  stated  in  the  verdict  are  no  legal  justification 


364  COMMONWEALTH  V.   BROOKS.  [CHAP.  IX 

of  the  homicide  ;  and  to  saj'  that,  in  our  unanimous  opinion,  they  are, 
upon  this  special  verdict,  guilt}'  of  murder. 

/Sir  Henry  James^  Attorney-Genei'al,  prayed  the  sentence  of  the 
court. 

The  Lord  Chief  Justice  thereupon  passed  sentence   of  death  in 
the  usual  form.^ 

Judgment  for  the  Crown. 


RESPUBLICA  V.  McCARTY. 
Supreme  Court  of  Pennsylvania.    1781. 

[Reported  2  Dallas,  86.] 

McKean,  C.  J.^  The  crime  imputed  to  the  defendant  by  the  indict- 
ment is  that  of  levying  war,  by  joining  the  armies  of  the  Kiug  of 
Great  Britain.  Enlisting,  or  procuring  any  person  to  be  enlisted,  in 
the  service  of  the  enemy,  is  clearly  an  act  of  treason.  By  the  defend- 
ant's own  confession  it  appears  that  he  actually  enlisted  in  a  corps 
belonging  to  the  enemy  ;  but  it  also  appears  that  he  had  previously  been 
taken  prisoner  by  them,  and  confined  at  Wilmington.  He  remained, 
however,  with  the  British  troops  for  ten  or  eleven  months,  during  which 
he  might  easily  have  accomplished  his  escape,  and  it  must  be  remem- 
bered that  in  the  eye  of  the  law  nothing  will  excuse  the  act  of  joining 
an  enemy  but  the  fear  of  immediate  death ;  not  the  fear  of  any  infe- 
rior personal  injury,  nor  the  apprehension  of  any  outrage  upon  property. 
But  had  the  defendant  enlisted  merely  from  the  fear  of  famishing,  and 
with  a  sincere  intention  to  make  his  escape,  the  fear  could  not  surely 
always  continue,  nor  could  his  intention  remain  unexecuted  for  so  long 
a  period. 


COMMONWEALTH   v.  BROOKS. 
Supreme  Judicial  Court  of  Massachusetts.    1868. 

[Reported  99  Massachusetts,  434.] 

Complaint  for  the  violation  of  s.  34  of  an  ordinance  of  the  city  of 
Boston  relating  to  carriages,  which  section  is  printed  in  the  margin,' 

^  The  prisoners  were  afterwards  respited  and  their  sentence  commuted  to  one  of  six 
months'  imprisonment  without  hard  labor.  —  Rep. 

2  To  the  jury.  Only  so  much  of  the  charge  is  given  as  deals  with  the  question  of 
necessity. 

3  "  No  owner,  driver,  or  other  person  having  the  care  or  ordering  of  any  chaise,  car- 
ryall, hackney  carriage,  truck,  cart,  wagon,  handcart,  sleigh,  sled,  handsled,  or  any 
other  vehicle  whatsoever,  new  or  old,  finished  or  unfinished,  with  or  without  a  horse 
or  horses,  or  other  animal  or  animals  harnessed  thereto,  shall  suffer  the  same  to  stop  in 
any  street,  square,  lane,  or  alley  of  this  city  more  than  five  minutes,  without  some 
proper  person  to  take  care  of  the  same,  or  more  than  twenty  minutes  in  any  case  ;  and 


SECT.  VII.]  COMMONWEALTH    V.   BKOOKS.  305^ 

(Laws  uuil  Ordinances  of  lioston,  cd.  iHfi.'j,  p.  lOfi)  in  suffering  the 
defendant's  wagon  to  stop  iu  South  Market  Street  in  Boston  more 
than  twenty  minutes.* 

(JicAY,  .1.  It  i.s  very  clear  tliat  tlie  defendant  was  not  proved  to  have 
violated  the  city  ordinance  on  which  he  was  prosecuted.  No  person 
trans<;ressc3  the  ordinance,  who  does  not  voluntarily  suffer  his  vehicle 
to  stop  iu  the  street  for  more  than  twenty  minutes.  The  defendant, 
indeed,  drove  into  South  Market  Street  more  than  twenty  minutes 
l)efore  four  o'clock,  and  inteniled  to  remain  in  that  street  until  four 
o'clock.  But  he  had  the  right  to  travel  in  the  street,  if  he  did  not  volun- 
tarily suffer  his  vehicle  to  stop  in  it  for  the  prohibited  period.  If  he 
had  arrived  on  his  stand  more  than  twenty  minutes  before  four  o'clock 
and  voluntarily  remained  there  with  his  wagon  until  that  hour,  or  if  he 
had  voluntarily  stopped  his  wagon  for  more  than  twenty  minutes  at 
any  other  place  iu  the  street,  it  would  have  been  a  violation  of  the 
ordinance.  So,  perhaps,  if  he  had  stopped  for  more  than  twenty 
minutes  iu  all  iu  two  places  near  each  other,  in  the  execution  of  one 
purpose.  But  it  is  unnecessary  in  this  case  to  consider  under  what 
circumstances  repeated  intermissions  of  travel,  or  time  spent  in  driving 
about  the  street  without  intention  of  moving  onward  towards  a  par- 
ticular destination,  might  be  treated  as  going  to  make  up  one  stopping, 
within  the  meaning  of  the  ordinance  ;  for  it  appears  that  the  defend- 
ant, while  driving  his  wagon  through  the  street  towards  his  stand,  was 
delayed  by  the  crowding  of  other  vehicles  which  he  could  not  control 
for  five  or  six  minutes,  and  then  drove  on  and  occupied  his  stand.  He 
did  not  voluntarily  stop  at  all  before  arriving  at  his  stand ;  he  did  not 
stop  on  his  stand  but  fifteen  minutes  before  four  o'clock ;  and  after 
four  o'clock,  being  a  marketraan,  engaged  in  bringing  vegetables  into 
the  city  and  selling  them  from  his  wagon  at  a  stand  occupied  by  him 
within  the  estal)lished  limits  of  the  market,  though  in  a  public  street, 
he  is  admitted  to  have  had  a  right,  by  virtue  of  the  exception  in  the 
ordinance,  and  of  the  St.  of  1859,  c.  211,  to  be  and  remain  upon  his 
stand  with  his  wagon.  Neio  tried  ordered.^ 

any  person  so  offending  shall  he  liahle  to  a  fine  of  not  less  than  three,  nor  more  than 
twenty  dollars  for  eacli  offence.  But  this  section  shall  not  apjdy  to  the  carriages  of 
physicians  wliile  visiting  the  sick,  or  to  the  vehicles  of  market  and  provision  men,  who 
may  stand  with  the  same,  without  the  limits  of  Faneuil  Hall  Market,  until  eleven 
iiVlock  in  the  forenoon,  at  such  places  in  the  city  as  the  board  of  aldermen  may  desig- 
nate, for  tlie  purpose  of  vending  provisions." 

'  The  evidence  is  omitted. 

2  See  Brig  James  Wells  v.  U.S.,  7  Cranch,  22;  Brig  William  Gray,  1  Paine,  16.— Eft 


366  STATE  V.    WRAY.  [CHAP.  IX. 


STATE  V.  WRAY. 
Supreme  Coukt  of  North  Carolina.    1875. 

[Reported  72  North  Carolina,  253.] 

Settle,  J.  The  defend auts  being  indicted  for  retailing  spirituous 
liquors  without  a  license  so  to  do,  the  jury  rendered  the  following 
special  verdict:  "The  defendants  were  druggists  and  partners  in  the 
town  of  Shelby,  and  kept  medicines  for  sale,  but  had  no  license  to 
retail  spirituous  liquors.  In  the  month  of  July,  1872,  Dr.  0.  P.  Gardner, 
a  practising  physician  in  the  town  of  Shelby,  prescribed  the  use  of  a 
half-pint  of  French  brandy  for  Mrs.  Durham,  the  wife  of  the  witness, 
Hill  Durham,  and  directed  the  witness  to  go  to  the  defendants  for  it. 
That  Dr.  Gardner  also  went  to  the  defendants  and  directed  them  to 
let  the  witness  have  the  said  brandy  for  his  wife  as  medicine.  The 
witness  then  went  to  the  defendants  and  purchased  the  half-pint  of 
French  brandy,  and  his  wife  used  it  as  medicine.  That  French  brandy 
is  a  spirituous  liquor ;  that  it  is  also  an  essential  medicine,  frequently 
prescribed  by  physicians,  and  often  used,  and  that  in  this  case  it  was 
bought  in  good  faith  as  a  medicine,  and  was  used  as  such." 

The  letter  of  the  law  has  been  broken,  but  has  the  spirit  of  the  law 
been  violated?  The  question  here  presented  has  been  much  discussed, 
but  it  has  not  received  the  same  judicial  determination  in  all  the  States 
in  which  it  has  arisen.  In  this  conflict  of  authority  we  shall  remember 
that  the  reason  of  the  law  is  the  life  of  the  law,  and  when  one  stops 
the  other  should  also  stop. 

What  was  the  evil  sought  to  be  remedied  by  our  statute?  Evidently 
the  abusive  use  of  spirituous  liquors,  keeping  in  view  at  the  same  time 
the  revenues  of  the  State.  The  special  verdict  is  very  minute  in  its 
details,  and  makes  as  strong  a  case  for  the  defendants  as  perhaps  will 
ever  find  its  way  into  court  again.  A  physician  prescribes  the  brandy 
as  a  medicine  for  a  sick  lady,  and  directs  her  husband  to  get  it  from 
the  defendants,  who  are  druggists.  It  may  be  that  a  pure  article  of 
brandy,  such  as  the  physician  was  willing  to  administer  as  a  medicine, 
was  not  to  be  obtained  elsewhere  than  at  the  defendants'  drugstore. 
The  doctor  himself  goes  to  the  defendants  and  directs  them  to  let  the 
witness  have  the  brandy  as  a  medicine  for  his  wife.  And  the  further 
fact  is  found,  which  perhaps  might  have  been  assumed  without  the  find- 
ing, that  French  brandy  is  an  essential  medicine,  frequently  prescribed 
by  physicians  and  often  used  ;  and  the  farther  and  very  important  fact 
is  established,  that  in  this  case  it  was  bought  in  good  faith  as  a  medi- 
cine, and  was  used  as  such.  After  this  verdict  we  cannot  doubt  that 
the  defendants  acted  in  good  faith  and  with  due  caution,  in  the  sale 
which  is  alleged  to  be  a  violation  of  law. 

In  favor  of  defendants,  criminal  statutes  are  both  contracted  and 


SECT.  VIII.]  KEX   V.   CRUTCHLEY.  367 

expumk'il.  1  Bishoi),  inir.  2C,l.  Now  unless  tliis  s:ile  comes  withia 
the  mischief  which  the  statute  was  iiiteiuletl  to  suppress,  the  defeiid- 
auts  are  not  guilty  ;  for  it  is  a  principle  of  the  common  law  that  no 
one  shall  sulTer  criminally  for  au  act  in  which  his  mind  does  not  con- 
cur. The  familiar  instance  given  by  Ulackstone  illustrates  our  case 
better  than  I  can  do  by  argument.  The  Bolognian  law  enacted  "that 
whosoever  drew  blood  in  the  street,  should  be  punished  with  the  utmost 
severity."  A  person  fell  down  in  the  street  with  a  fit,  and  a  surgeon 
opened  a  vein  and  drew  blood  in  the  street.  Here  was  a  clear  viola- 
tion of  the  letter  of  the  law,  and  yet  from  that  day  to  this,  it  has  never 
been  considered  a  violation  of  the  sijirit  of  the  law.  Perhaps  it  will 
give  us  a  clearer  view  of  the  case  if  we  put  the  druggist  out  of  the 
question,  and  suppose  that  the  physician  himself,  in  the  exercise  of 
his  professional  skill  and  judgment,  had  furnished  the  liquor  in  good 
faith  as  a  medicine.  Can  it  be  pretended  that  he  would  be  any  more 
guilty  of  a  violation  of  our  statute,  than  the  surgeon  was  guilty  of  a 
violation  of  the  Bolognian  law?    We  think  not. 

But  we  would  not  have  it  understood  that  physicians  and  druggists 
are  to  be  protected  in  an  abuse  of  the  privilege.  They  are  not  only 
prohibited  from  selling  liquor  in  the  ordinary  course  of  business,  but 
also  from  administering  it  as  a  medicine  unless  it  be  done  in  good 
faith,  and  after  the  exercise  of  due  caution  as  to  its  necessity  as  a 
medicine.  The  sale  of  liquor  without  a  license,  in  quantities  less  than 
a  cpuut,  is  prima  facie  unlawful,  and  it  is  incumbent  upon  one  who 
does  so  sell  to  show  that  it  was  done  under  circumstances  which  ren- 
der it  lawful.  In  this  case  we  think  such  circumstances  have  been 
shown,  and  we  concur  in  the  judgment  of  his  honor,  that  the  defend- 
ants are  not  guilty. 

I'tu  CuuiAM.  Judgment  affirmed. 


SECTION   VIII. 

Compuhion  and  Command. 

REX   V.   CRUTCHLEY. 
Bkrkshire  Assizes.     1831. 

[Rtjiorted  5  C<vniuiiinn  Sf  Pnyne,  133.] 

Indictment  on  the  stat.  7  &  8  Geo.  4,  c.  30,  s.  4,  for  destroying  a 
threshing  machine,  the  property  of  a  person  named  Austin.  There 
were  other  counts  for  damaging  it  with  intent  to  destroy  it,  and  for 
damaging  it  with  intent  to  render  it  useless. 

It  appeared  that,  al)0ut  ten  o'clock  in  the  night  of  the  22d  of 
Novemlxir,  1830,  a  mob  came  to  the  farm  of  Mr.  Austin,  and  broke  his 
threshing  machine  to  pieces.     It  was  proved  that  the  prisoner  was  with 


368  UNITED   STATES   V.   JONES.  [CHAP.  IX. 

this  mob,  and  that  he  gave  the  threshing  machine  a  blow  with  a  sledge- 
hammer. 

Mr.  Justice  Patteson  allowed  the  witnesses  for  the  prosecution  to  be 
asked,  in  cross-examination,  whether  many  persons  had  not  been  com- 
pelled to  join  this  mob  against  their  will,  and  whether  the  mob  did  not 
compel  each  person  to  give  one  blow  to  each  threshing  machine  that 
they  broke. 

For  the  defence  "William  Davis  was  called.  He  was  the  gamekeeper 
of  Mrs.  Bainbridge,  in  whose  service  the  prisoner  was  an  under-keeper. 
He  stated  that,  being  on  the  watch  at  Mrs.  Bainbridge's  preserves,  the 
mob  laid  hold  of  himself  and  the  prisoner,  and  compelled  both  to  go 
with  them  for  the  purpose  of  breaking  threshing  machines. 

Mr.  Justice  Patteson  allowed  the  witness  to  state  that,  before  the 
prisoner  and  himself  had  gone  many  yards  with  the  mob,  they  agreed 
to  run  away  from  the  mob  the  first  opportunity. 

The  witness  stated  that  he  ran  away  from  the  mob  in  about  ten 
minutes,  and  that  the  prisoner  joined  him  in  about  a  quarter  of  an 
hour  after  that  time,  and  that  they  then  returned  to  their  watching  at 
the  preserves. 

Verdict,  Not  guilty.^ 


UNITED   STATES   u.   JONES. 
U.  S.  Circuit  Court,  Dist.  Pennsylvania.     1813. 

[Reported  3  Washington,  C.  C.  209.] 

The  prisoner  was  indicted  for  feloniously  and  piratically  entering  a 
certain  Portuguese  brig  (by  name),  and  assaulting  the  captain,  &c.  It 
appeared  in  evidence,  on  the  part  of  the  prosecution,  that  the  defendant 
■was  the  first  lieutenant  of  a  privateer  schooner,  called  the  "  Revenge," 
William  Butler  master,  duly  commissioned  by  the  President  of  the 
United  States,  on  the  12th  of  October,  1812.  The  points  of  law  raised 
by  the  counsel  for  the  prisoner  were  five.  The  prisoner  was  an  inferior 
officer,  and  was  bound  to  obey  the  orders  of  Captain  Butler ;  of  course, 
he  cannot  be  punished  for  having  done  so.^ 

1  "  With  regard  to  the  argument  you  have  heard,  that  these  prisoners  were  induced 
to  join  Thorn,  and  to  continue  with  him  from  a  fear  of  personal  violence  to  themselves, 
I  am  bound  to  tell  you,  that  where  parties  for  such  a  reason  are  induced  to  join  a 
mischievous  man,  it  is  not  their  fear  of  violence  to  themselves  which  can  excuse  their 
conduct  to  others.  You  probably,  gentlemen,  never  saw  two  men  tried  at  a  criminal 
bar  for  an  offence  which  they  had  jointly  committed,  where  one  of  them  had  not  been 
to  a  certain  extent  in  fear  of  the  other,  and  had  not  been  influenced  by  that  fear  in  the 
conduct  he  pursued  ;  yet  that  circumstance  has  never  been  received  by  the  law  as 
an  excuse  for  his  crime,  and  the  law  is,  that  no  man,  from  a  fear  of  consequences  to 
himself,  has  a  right  to  make  himself  a  party  to  committing  mischief  on  mankind." 
Lord  Denman,  C.  J.,  in  Reg.  v.  Tyler,  8  C.  &  P.  616.  —Ed. 

*  Only  so  much  of  the  case  as  involves  this  point  is  given. 


SECT.  IX.]  REGINA   V.   REED.  309- 

Washington,  Justice,  charged  the  jury.  The  only  remaining  ques- 
tion of  law  wliich  has  been  raised  in  this  cause  is,  that  the  prisoner 
ought  to  be  presumed  to  have  acted  under  the  orders  of  his  superior 
ollker,  which  it  was  his  duty  to  obey.  This  doctrine,  equally  alarming 
and  unfounded,  underwent  an  examination  and  was  decided  by  this 
court  in  the  case  of  General  Bright.  It  is  repugnant  to  reason,  and 
to  the  positive  law  of  the  land.  No  military  or  civil  oflicer  can  com- 
mand an  inferior  to  violate  the  laws  of  his  country ;  nor  will  such  a 
command  excuse,  much  less  justify,  the  act.  Can  it  be  for  a  moment 
pretended  that  the  general  of  an  army,  or  the  commander  of  a  ship  of 
war,  can  order  one  of  his  men  to  commit  murder  or  felony?  Certainly 
not.  In  relation  to  the  navy,  let  it  be  remarked,  that  the  fourteenth 
section  of  the  law  for  the  better  government  of  that  part  of  the  public 
force,  which  enjoins  on  inferior  officers  or  privates  the  duty  of  obe- 
dience to  their  superior,  cautiously  speaks  of  the  lawful  orders  of  that 
superior. 

Disobedience  of  an  unlawful  order  must  not,  of  course,  be  punish- 
able ;  and  a  court-martial  would,  in  such  a  case,  be  bound  to  acquit  the 
person  tried  upon  a  charge  of  disobedience.  We  do  not  mean  to  go 
further  than  to  say,  that  the  participation  of  the  inferior  officer  in  an 
act  which  he  knows,  or  ought  to  know,  to  be  illegal,  will  not  be  excused 
by  the  order  of  his  superior.^ 


SECTION    IX. 
Custom. 


REGINA  V.   REED. 
Sussex  Assizes.     1871. 

[Reported  12  Cox  C.  C.  1] 

The  indictment  stated  that  the  defendants  did  unlawfully  and  inde- 
cently expose  their  bodies  and  persons  naked  and  uncovered  in  pres- 
ence of  divers  of  her  Majestj-'s  subjects,  to  their  great  scandal,  and  to 
the  manifest  corruption  of  their  morals ;  and,  second  count,  that  the 
defendants  on  a  certain  public  and  common  highway,  in  the  parish 
of  Appledown,  unlawfully  and  indecently  did  expose  their  bodies  and 
persons  naked  and  uncovered  in  the  presence  of  divers  subjects  then 
and  there  being,  and  within  sight  and  view  of  divers  others  passing  and 
repassing  in  the  highway,  to  the  common  nuisance  of  the  subjects  of 
the  Queen. 

The  defendants  pleaded  not  guilty. 

1  Ace.  Kex  V.  Thomas,  1  Russ.  Crimes,  731  ;  U.  S.  r.  Carr,  1  Woods,  480 ;  Com.  v. 
Blodgett,  12  Met  56.  —  Ed. 

24 


370  REGINA   V.   REED.  [C'flAP.  IX. 

Hawkins,  Q.  C,  aud  Grantham,  for  the  prosecution. 
WiUoughby  and  A.  L.  Smith,  for  the  defendants. 

Hatokins,  in  opening  the  case,  cited  Rex  v.  Crowden,  2  Camp. 
N.  P.  C.  89,  where  a  defendant  was  convicted  of  indecenc}'  in  bathing 
at  Brighton  in  view  of  houses  recently  erected.  Although  in  the  pres- 
ent case  it  was  not  alleged  that  the  bathing  was  within  view  of  the 
houses,  it  was  urged  that,  as  it  was  on  a  public  pathway,  it  was  the 
same  case  in  point  of  principle. 

It  appeared  that  the  bathing  took  place  in  the  sea,  at  a  spot  about 
two  miles  from  Chichester,  and  half  a  mile  from  the  nearest  dwelling- 
house,  at  the  mouth  of  the  Levant,  a  stream  flowing  from  Chichester, 
and  where  the  water  was  deeper  than  elsewhere  on  that  part  of  the  coast. 
The  bathing-place  was  on  a  public  footway  from  Chichester,  on  a  bank 
or  sea-wall  along  the  beach.  The  side  of  the  bank  next  to  the  sea,  as 
it  was  a  sea-wall,  was  not  accessible  as  a  place  for  dressing  and  un- 
dressing, and  so  the  bathers  dressed  and  undressed  on  the  land  side  of 
the  path.  Hence  they  passed  naked  to  and  from  the  sea  across  the 
path ;  and  it  was  proved  that  as  many  as  eighteen  or  twenty  women 
passed  along  the  footpath  in  the  course  of  a  day,  and  that  sometimes 
they  had  to  turn  back  in  order  to  avoid  the  bathers.  The  bathing  took 
place,  not  merely  in  the  morning  and  evening,  but  in  the  afternoon,  at 
the  time  women  were  walking  along  the  path.  Moreover,  as  the  bank 
was  five  or  six  feet  high,  the  bathers,  when  on  the  path,  were  seen  at 
some  distance. 

It  was  proved  that  bathing  went  on  at  the  time  women  were  passing, 
and  that  sometimes  they  had  to  turn  back.  The  pathway  was,  it  was 
stated,  one  of  the  most  pleasant  walks  round  Chichester,  and  a  good 
deal  frequented  by  ladies,  especially  in  that  season  of  the  3'ear  when 
bathing  went  on ;  and  the  prosecutor,  Mr.  Stanford,  whose  house  was 
within  half  a  mile  of  the  bathing-place,  stated  that  the  bathers  could  be 
seen  from  some  of  the  windows  of  his  house  and  from  his  garden.  But 
it  did  not  appear  that  complaints  had  been  made  until  the  prosecutor 
purchased  the  house  about  two  years  ago,  and  it  also  appeared  that 
there  was  another  house  nearer  than  his,  and  that  the  inhabitants  did 
not  complain,  the  nearest  house  being  above  a  quarter  of  a  mile  from 
the  bathing-place.  Further,  it  appeared  that  for  more  than  half  a 
centurj-  bathing  had  taken  place  there  without  any  complaint,  and  that 
there  had  not  been  on  the  part  of  an}'  of  the  defendants  an}-  exposure 
be3-ond  what  was  necessarily  incident  to  bathing.  Nevertheless,  it 
appeared  that  the  pathway  from  which  the  bathing  took  place  was  one 
of  the  most  pleasant  walks  in  the  neighborhood  of  Chichester,  and  that 
it  was  practically  closed  to  females  during  the  bathing  season,  which 
was,  of  course,  the  finest  portion  of  the  year. 

CocKBURN,  C.  J.  If  the  place  where  the  bathing  went  on  was  a 
place  where  persons  could  not  bathe  without  indecent  exposure,  it  was 
a  place  where  bathing  ought  not  to  go  on.  Undoubtedly,  if  it  was  a 
place  where  people  rarel}'  passed,  and  where  there  was  no  necessity  for 


SECT.  IX.]  ItEGlNA    V.    KEED.  371 

passing  at  all,  il  wuiiKl  be  a  umteriul  elcujent  in  the  case.  But  the 
Tuere  fact  that  bathing  could  not  go  on  in  the  place  without  exposure 
was  not  enough  to  excuse  the  exposure,  and  was  rather  a  reason  why 
ihe  bathing  ought  not  to  go  on.  Upon  these  facts  it  was  quite  impos- 
sible that  the  defendants  could  resist  a  conviction  upon  this  indictment. 
I'here  was,  it  api)eared,  a  public  footway  frequented  in  line  weather  Ijy 
the  inhabitants  of  Chichester,  and  which  must  be  taken  to  be  an  ancient 
and  accustomed  footway.  It  was  impossible  to  set  up  a  customary 
right  to  bathe  close  to  the  path  in  such  a  way  as  to  violate  public 
decency,  and  thus  to  be  inconsistent  with  the  use  of  the  footway  by  any 
of  the  Queen's  subjects,  especially  of  the  female  sex.  No  one  could 
suppose  that  respectable  women  could  frequent  the  footpath  where  men 
were  in  the  habit  of  bathing,  and  were  constantly  seen  in  a  state  of 
nudity.  It  was  clear,  therefore,  that  the  usage  so  to  bathe,  however 
long  it  might  have  existed,  could  not  be  upheld,  and  that  those  persons 
who  thus  exposed  themselves  upon  or  near  to  a  public  footway  were 
liable  to  be  indicted  for  indecency.  There  must,  if  the  prosecution  was 
pressed,  be  a  verdict  of  guilty  upon  this  indictment,  unless  the  facts  as 
thus  shown  in  evidence  could  be  altered. 

It  was  not  suggesteil  for  the  defence  that  the  facts  could  be  altered. 

Jlawkinn,  for  the  prosecution,  stated  that  it  was  not  desired  to  press 
the  prosecution,  if  protection  for  the  future  could  be  secured,  and  there- 
upon it  was  agreed  between  the  parties  that  bathing  henceforth  should 
take  place  from  a  shed  to  be  erected  for  the  purpose,  and  on  this 
condition  the  jury  were  discharged.^ 

*  Ace  Com.  V.  Perry,  130  Mass.  198. 

"  When  I  was  servant  to  Sir  James  Hales,  one  of  the  Justices  of  the  Common  Pleas, 
one  <-f  his  servants  was  robbed  at  Gads  Hill,  within  the  Hundred  of  Gravesend  in  Kent, 
and  he  sued  the  men  of  the  Hundred  upon  tliis  statute  [Statute  of  Winchester,  13  Kd.  I.] ; 
and  it  seemed  hard  to  the  inhabitants  there  that  tliey  should  answer  for  the  robberies 
done  at  Gads  Hill,  because  robberies  are  there  so  frequeut  that  if  they  should  answer 
for  all  of  them  that  they  should  be  utterly  undone.  And  Harris,  Sergeant,  was  of 
counsel  with  the  inhabitants  of  Gravesend,  and  pleaded  for  them,  that  time  out  of 
mind,  &c.,  felons  had  used  to  rob  at  Gads  Hill,  and  so  prescribed,  and  afterwards  by 
award  they  were  charged."  —  Manwoou,  J.,  2  Leon.  12  (19  Eliz.).  —  Ed. 


372  COMMONWEALTH   V.   HADLEY.  [CHAP.  X. 


CHAPTER  X. 

PARTIES  IN  CRIME. 

SECTION  I. 

Agency. 

COMMONWEALTH  v.  HADLEY. 
Supreme  Judicial  Court  of  Massachusetts.     1846. 

[Reported  1 1  Metcalf,  66.] 

Shaw,  C.  J.  The  present  case,  which  comes  before  the  Court  upon 
exceptions,  presents  a  question  of  great  importance  affecting  the  admin- 
istration of  the  license  laws  of  this  Commonwealth.  The  defendant 
was  indicted  upon  the  ss.  1  &  2  of  c.  47  of  the  Revised  Statutes,  and 
by  a  general  verdict  was  convicted  on  both.  Exceptions  were  taken  to 
the  directions  of  the  judge  before  whom  the  indictment  was  tried  in  the 
municipal  court.  It  appears  b}'  the  bill  of  exceptions  that  evidence 
was  introduced  in  support  of  the  indictment  tending  to  show  sales  of 
spirituous  liquors  to  be  used  in  a  certain  shop,  which  sales  were  effected 
therein  by  the  defendant.  On  this  proof  the  public  prosecutor  relied  to 
prove  the  sale  by  the  defendant,  as  charged  in  the  indictment. 

The  bill  of  exceptions  then  states  that  "the  defendant  offered  evi- 
dence to  show  ihat_the_premises  in  which  the  sales  were  effected,  were 
not  leased  to  him  ;  that  he  was  not  the  proprietor  nor  owner  thereof; 
that  lie  was  merely  a  hired  agent,  having  no  interest  in  the  pi'ofits,  and 
acting  in  the  presence  and  under  the  control  of  his  employer ;_  and  he 
contended  that  to  support  the  indictment  the  government  must  show 
that  the  spirituous  liquor  was  to  be  used  in  his  house  or  other  building, 
and  that  if  the  defendant  was  a  mere  bartender  or  hired  agent  he  was 
not  liable  under  the  statute."  The  judge  declined  so  to  direct  the  jur}-, 
but  directed  them  "  that  such  evidence  coufd  not  be  a  sufficient  defence 
under  the  statute,  and  that  if  the  jury  believed  that  sales  were  effected 
by  the  defendant  in  the  manner  before  stated,  in  the  house  of  another 
as  a  hired  agent  or  bartender,  he  was  liable  under  the  statute." 

Tlie  court  are  of  opinion  that  these  directions  were  right.  The  evi- 
dence first  offered  on  the  part  of  the  prosecutor  constituted  a  primd 
facie  case  to  support  the  indictment.  The  Rev.  Sts.,  c.  47,  provide, 
In  s.  1,  that  no  person  shall  presume  to  be  a  common  seller  of  wine, 
brandy,  etc.,  unless  first  licensed  as  an  innholder  or  common  victualler. 
Section  2  provides,  that  if  any  person  shall  sell  any  spirituous  liquor,  to 


SECT.  1.]  COMMONWEALTH   V.   IIADLEY.  373 

be  used  in  or  about  his  house  or  other  buildings,  without  being  duly 
licensed,  he  shall  forfeit,  etc.  Any  person  incurs  the  penalty  of  the 
first  section  who  habitually  sells  to  persons  indiscriminately,  although 
he  does  not  profess  to  be,  or  appear  to  exercise  the  vocation  of,  an 
innholder  or  common  victualler.  Commonwealth  v.  Pearson,  3  Met. 
44y.  Any  person  incurs  the  penalty  of  the  second  section  by  selling 
any  quantity,  in  a  particular  instance,  to  be  used  in  his  house.  Com- 
monwealth V.  Thurlow,  2-t  Pick.  374.  When,  therefore,  it  was  shown 
that  the  defendant  was  making  sales  of  the  prohibited  article,  in  a  shop 
adapted  for  the  purpose,  to  be  used  on  the  premises,  he  was  thereby 
doing  acts  implying  that  he  claimed  and  had  possession  and  control  of 
the  article  sold,  and  also  that  he  had  such  actual  and  uncontrolled 
possession,  occupation,  or  use  of  the  shop  and  place  of  sale  and  con- 
sumption, as  were  necessary  and  sufficient  to  accomplish  the  act  which 
the  law  expressly  prohibits.  Unless,  therefore,  something  further  were 
shown  by  way  of  justification  or  excuse  the  defendant  must  be  con- 
victed. The  true  question,  therefore,  is,  whether  the  evidence  offered 
by  the  defendant,  if  it  had  been  admitted,  showing  that  the  premises 
were  not  his  own,  but  that  he  acted  as  the  agent  and  under  the 
authority  of  another  person,  without  showing  that  such  person  was 
licensed,  would  constitute  such  excuse  or  justification. 

Then  we  are  brought  to  the  question  of  construction  —  if,  indeed, 
there  be  room  for  construction  —  of  those  words  of  the  statute,  "any 
person  who  shall  sell."  It  appears  to  us  that  one  who  offers  an  article 
for  sale,  either  upon  the  application  of  the  purchaser  or  otherwise,  and 
who,  when  the  offer  is  accepted,  delivers  the  article  in  pursuance  of  the 
offer,  does  "  sell"  or  make  a  sale,  according  to  the  ordinary  sense  and 
meaning  of  that  term.  It  would  seem  strange  and  contradictory  to 
maintain  that  one  who  sells  goods  on  commission,  or  as  the  factor, 
agent,  or  salesman  of  another,  does  not  sell  them.  The  argument 
assumes  that  a  sale  must  be  construed  to  be  a  contract  by  which  the 
owner  of  property  alienates  it  and  transfers  his  title  to  another.  But 
this  is  a  very  limited  view  of  the  subject.  It  is  not  less  a  sale,  and 
even  a  valid  sale,  when  made  by  the  authority  of  the  owner.  So  the 
naked  possession  of  property',  however  obtained,  is  some  evidence  of 
title.  The  holder  may  make  a  sale  de  facto,  which  can  only  be  defeated 
by  one  having  a  higher  title,  and  which  may  be  ratified  b}'  the  assent  of 
the  owner.  The  statute  prohibits  all  sales  b}-  unlicensed  persons,  as 
well  sales  de  facto  as  sales  by  an  owner,  and  therefore  the  case  is 
within  the  words  of  the  statute. 

But  it  is  equally  within  the  spirit  of  the  statute.  In  construing  an 
act  of  the  legislature,  as  in  construing  every  other  instrument,  we  are 
to  look  at  the  entire  act,  and  ever}'  provision  and  clause  in  it,  in  order 
to  ascertain  the  meaning  and  intent.  And  although  the  same  latitude 
of  construction  is  not  allowed  in  criminal  prosecutions  as  in  civil  suits, 
still  the  subject-matter  is  not  to  be  overlooked.  The  language  of  the 
statute  is  to  be  so  construed,  when  it  reasonably  can  be,  as  to  promote 


374  COMMONWEALTH    V.    HADLEY.  [CHAP.  X. 

rather  than  defeat  the  obvious  purposes  of  the  legislature.  Now,  in 
reading  this  statute,  it  is  impossible  not  to  perceive  that  the  plain  and 
governing  purpose  of  the  statute  is  to  restrain  and  prevent  the  dis- 
orders, breaches  of  the  peace,  riot,  pauperism,  and  crime,  which  would 
arise  from  the  too  free  use  and  too  easy  mode  of  obtaining  intoxicating 
liquor  in  small  quantities,  and  to  accomplish  this  b}'  prohibiting  the 
indiscriminate  sale  of  it  by  disorderl\-,  unsuitable,  and  unlicensed  per- 
sons. The  contemplated  mischiefs  arising  from  the  actual  sales  would 
not  be  less,  although  the  conduct  of  the  seller  should  also  be  unlawful 
in  other  respects ;  as  when  he  has  obtained  the  propert}'  by  finding, 
and  converted  it  to  his  own  use,  or  taken  it  tortiously  b}'  an  act  of 
trespass,  or  actually  stolen  it.  Would  a  shop  opened  by  an  unlicensed 
person  for  the  indiscriminate  sale  of  spirituous  liquors  be  less  a  nui- 
sance because  it  is  also  a  receptacle  of  stolen  goods,  or  because  the  liquor 
actually  sold  in  it  has  been  stolen  ?  I  shall  not  be  understood  to  inti- 
mate that  stealing  or  receiving  stolen  goods,  or  goods  obtained  unlaw- 
fully, would  be  punishable  under  this  statute  as  a  substantive  offence, 
but  onl}'  that  the  actual  sale  of  intoxicating  liquor  is  not  the  less  within 
the  mischiefs,  and  the  express  prohibition  of  the  statute,  because 
the  subject  of  the  sale  has  come  unlawfully'  to  the  possession  of  the 
seller. 

The  construction  contended  for  b}-  the  defendant,  b}'  which  the 
actual  seller  should  exempt  himself  from  the  penalty  of  the  law,  by 
showing  that  he  sold  for  the  use  and  benefit,  and  b}-  the  authority',  of 
another  person,  would  let  in  all  the  mischiefs  intended  to  be  prevented 
by  the  statute.  A  person  residing  out  of  the  State,  and  beyond  the 
jurisdiction  of  its  laws,  b}-  taking  the  lease  of  shops,  and  employing 
selling  agents  and  barkeepers,  might  wholly*  defeat  the  salutary  objects 
of  the  law. 

It  is  then  urged,  secondly,  as  an  excuse  for  the  defendant,  that  he 
offered  to  show  that  he  was  a  hired  agent,  having  no  interest  in  the 
profits,  and  acting  in  the  presence  of  and  under  the  control  of  his 
employer.  As  to  his  being  an  agent,  the  considerations  alread}'  stated 
apply  to  it.  As  to  his  acting  in  the  presence  of  his  employer,  we  think 
that  circumstance  would  make  no  difference  if  the  defendant  was  the 
ostensible  actor  in  the  sale  ;  because  one  who  sells  for  another,  although 
in  his  presence,  does  3'et  sell,  and  the  law  fixes  the  penalty'  upon  hiui 
who  does  the  act.  We  are  to  understand  in  the  present  case  that  the 
sale  was  actualh"  made  b}-  the  defendant,  otherwise  he  would  not  have 
been  convicted  by  the  jury.  If  the  employer  should  expressly  or  tacitly 
I  command,  direct,  or  instigate  him  to  do  it,  both  might  be  liable  ;  for  it 
'  is  a  general  rule  of  law,  in  cases  of  tort,  that  when  two  or  more  are 
guilt}',  as  actors  or  participators,  of  one  and  the  same  offence,  each  is 
severally  liable  to  the  penalt}-,  and  either  ma}'  be  severall}'  prosecuted 
for  it.  But  the  command  of  the  master  will  afford  no  justification  or 
excuse  to  the  serv^ant  making  the  sale,  because  it  is  an  unlawful  com- 
mand, which  he  is  not  bound  to  obey,  and  for  the  doing  of  which  he 


SECT.  I.]  COMMONWEALTH   V.    HADLKY.  375 

can  have  no  imkinnity  from  the  employer.  These  {Kjints  arc  familiar, 
anil  are  well  stated  in  the  authorities  cited  in  the  argument  Thus  it  is 
Htatcd  in  1  1>1.  Com.  121^,  1:50,  "  if  the  servant  commit  a  trespabs  by  the 
command  or  encouragement  of  his  master,  the  master  shall  be  guilty 
of  it,  though  the  scrvatit  is  not  thereb}'  excused,  for  he  is  only  to  o))ey 
his  master  in  matters  that  are  honest  and  lawful."  .So  in  2  JJane  Ab. 
310,  "  the  command  of  a  superior  to  an  inferior  U)  commit  a  tort  ex- 
cuses the  latter  in  no  case  but  that  of  a  wife.  Such  inferior,  as  servant, 
is  bound  to  perform  only  the  lawful  commands  of  his  superior  ;  and  the 
inferior  person  must  know,  too,  when  he  does  an  injury  ;  and  if  he  has 
to  pay  for  it,  he  has  no  remedy  against  his  master,  except  he  deceives 
him."     Perkins  v.  Smith,  Sayer,  40,  and  1  Wils.  328. 

Taken  in  connection  with  the  estal)lished  maxim  that  ignorance  of 
the  law  excuses  no  one  from  the  penalties  of  its  violation,  it  seems  to 
follow  as  a  necessary  consequence  that  a  salesman  or  barkeeper  cannot 
excuse  himself  by  showing  tliat  he  did  the  act  by  the  order  or  in  the 
presence  of  his  employer.  Whether  if  the  owner,  being  on  the  spot, 
should  direct  a  wife,  apprentice,  or  servant  to  draw  or  pour  out  tiie 
liquor,  or  to  deliver  it,  or  even  to  receive  payment  for  it,  the  subordi- 
nate would  be  liable,  is  a  (juestion  which  wc  are  not  called  upon  to 
decide,  and  which  must  depend  much  on  the  circumstances  of  particular 
cases.  It  might  give  rise  to  a  question  of  fact  whether  the  act  done  by 
the  subordinate  would  amount  to  an  actual  sale.  At  all  events,  the 
principal,  being  actively  and  ostensibly  engaged  in  the  transaction, 
would  be  unquestionabl}'  amenable  to  the  law  ;  and  this  consideration 
would  render  tlie  question  of  tlie  liability  of  the  subordinate  of  less 
practical  importance  to  the  due  execution  of  the  law. 

liut  where  one  acts  as  an  agent  under  a  general  authority  to  sell 
for  account  of  another,  we  are  of  opinion  that  sales  of  liquor  made  by 
him  are  equally  opposed  to  the  letter  and  spirit  of  tlie  law  as  if  he 
were  selling  his  own  property,  on  his  own  account,  and  for  his  own 
profit. 

It  is  urged,  thirdly,  as  an  argument  against  this  view  of  the  law,  that 
if  correct,  every  barkeeper  and  salesman  must  himself  be  licensed,  or 
he  would  subject  himself  to  the  penalties  of  the  law,  which  could  not 
liavc  been  contemplated  by  the  legislature.  But  we  think  this  is  not  a 
sound  conclusion  from  the  premises.  An  innkeeper  or  retailer  has  a 
hucful  authority  under  his  license  to  sell  spirituous  liquors,  under  cer- 
tain restrictions,  at  a  place  designated.  One  may  do  lawful  acts  by  an 
agent,  and  tlie  maxim  qui  facit  per  aliian  facxt  jycr  se  makes  them,  in 
legal  contemplation,  his  own  ;  and  his  license  will  authorize  him  to 
employ  persons  under  him,  and  will  be  their  justification.  This  right 
must,  of  course,  have  its  reasonable  limits.  We  do  not  mean  to  inti- 
mate that  one  can  make  a  general  assignment  of  his  license,  because 
the  law  contemplates  a  personal  trust,  but  that  he  may  authorize  others 
to  act  with  and  under  him  in  executing  the  powers  granted  to  him  bv 
the  license.     All,  therefore,  that  an  agent  or  barkeeper  has  to  do,  if 


376  PEOPLE   V.   PARKS.  [CHAP.  X. 

order  to  secure  an  immunity  from  the  penalties  of  the  law,  is  not 
to  obtain  a  license  himself,  but  to  be  well  assured  that  his  emploj-er 
has  one.^ 


PEOPLE  V.  PARKS. 
Supreme  Court  of  Michigan.     1882. 

[Reported  49  Michigan,  333] 

Campbell,  J-  Eespondent  was  convicted  under  the  statute  of  1881, 
making  it  a  misdemeanor  to  sell  intoxicating  liquor  to  persons  who 
are  in  the  habit  of  becoming  intoxicated.  The  sale  was  not  made  b}' 
respondent,  but  by  a  clerk.  The  court  below  held  that  the  respondent 
was  responsible  for  the  knowledge  of  his  clerk,  as  well  as  if  he  had 
known  the  condition  of  the  vendee  himself. 

The  statute  in  question  prohibits  sales  b}'  means  of  clerks  as  well  as 
in  person.  Laws  1881,  p.  355,  s.  12.  And  a  subsequent  section  (13) 
makes  violations  of  the  statute  misdemeanors,  and  punishable  as  such. 
But  it  would  be  an  unjust  and  inadmissible  interpretation  to  construe 
such  a  provision  as  covering  anything  but  an  act  in  which  the  will  of 
the  respondent  concurred  in  the  sale.  It  is  contrary  to  ever}'  rule  of 
law  to  hold  a  person  criminall}'  responsible  for  an  act  in  which  he  has 
taken  no  part.  He  can  only  be  punished  for  what  is  his  own  wrong. 
Section  2  clearly  imphes  the  necessity  of  criminal  intent  as  an  element 
of  the  offence,  and  lays  down  certain  rules  of  presumption  involving 
personal  knowledge  of  the  act  done.  It  makes  the  act  of  sale  to  an 
improper  person  presumptive  evidence  of  such  intent  to  violate  the 
law.  The  case  comes  within  the  decision  in  Faulks  v.  People,  39  Mich. 
200.  It  cannot  be  permissible  to  giA^e  an^-  other  construction,  which 
would  violate  the  elementary  rules  of  criminal  responsibilitj'. 

Whatever  civil  liabilit\'  maj^  arise  from  the  acts  of  a  clerk,  the  crim- 
inal responsibilitj'  must  fall  on  the  actual  wrong-doers,  who  have  done 
or  been  connected  with  the  violation  of  the  law  by  some  fault  of  their 
own. 

The  conviction  should  be  set  aside  and  the  case  dismissed. 

The  other  justices  concurred.'^ 

*  Part  of  the  opinion,  relating  to  another  objection,  is  omitted. 

See  ace.  State  v.  Bell,  5  Porter,  36.5;  Com.  v.  Drew,  3  Cush.  279;  State  v.  Bugbee, 
22  Vt.  32.  —  Ed. 

*  But  see  People  v.  Roby,  52  Mich.  577.  —  Ed. 


8EC1.  U.j  MEMORANDUM.  377-^ 

SECTION   II. 

Innocent  Agents. 

MEMORANDUM. 

[Rei)orted  Kdymj,  52] 

My  Brother  Twisdeii  shewed  ine  a  report  which  he  had  of  a  charge 
j^ivon  Ijy  .lustice  Joues  to  the  grand  jury  at  the  King's  Hench  Bar  in 
Michaelmas  Term,  9  Car.  I.,  in  which  he  said  that  poisoning  another 
was  murder  at  common  hiw.  And  the  statute  of  1  Ed.  VI.  was  but 
declaratory  of  the  common  law,  and  an  affirmation  of  it.  He  cited 
Vaux  and  Ridley's  Case.  If  one  drinks  poison  by  the  provocation  or 
persuasion  of  another,  and  dieth  of  it,  this  is  murder  in  the  person  that 
persuaded  it.  And  he  took  this  difference  :  If  A.  give  poison  to  J.  S. 
to  give  to  J.  D.,  and  J.  S.,  knowing  it  to  be  poison,  give  it  to  J.  D. 
who  taketli  it  in  the  absence  of  J.  S.  and  dieth  of  it,  in  this  case  J.  S. 
who  gave  it  to  J.  D.,  is  principal,  and  A.,  who  gave  the  poison  to  J.  8. 
and  was  absent  when  it  was  taken,  is  but  accessory  before  tlie  fact. 
But  if  A.  buyeth  poison  for  J.  S.,  and  J.  S.  in  the  absence  of  A.  taketh 
it,  and  dieth  of  it,  in  this  case  A.,  though  he  be  absent,  yet  he  is  prin- 
cipal. So  it  is  if  A.  giveth  poison  to  B.  to  give  unto  C,  and  B.,  not 
knowing  it  to  be  poison,  but  believing  it  to  be  a  good  medicine,  giveth 
it  to  C.  who  dieth  of  it;  in  this  case.  A.,  who  is  absent,  is  principal, 
or  else  a  man  should  be  murdered  and  there  should  be  no  principal. 
For  B.,  who  knew  nothing  of  the  poison  is  in  no  fault,  though  he  gave 
it  to  C.  So  if  A.  puts  a  sword  into  the  hand  of  a  madman,  and  bids 
him  kill  B.  with  it,  and  tlieu  A.  goeth  away,  and  the  madman  kills  B. 
witli  the  sword  as  A.  commanded  liim,  this  is  murder  in  A.  though 
absent,  and  he  is  principal ;  for  it  is  no  crime  in  the  madman  who  did 
the  fact,  by  reason  of  his  madness.  And  he  said  this  case  was  lately 
before  himself  and  Baron  Trevor  at  the  Assizes  at  Hereford.  A  woman 
after  she  had  two  daughters  by  her  husband,  eloped  from  him  and  lived 
with  another  man.  And  afterwards  one  of  her  daughters  came  to 
her,  and  she  asked  her  how  doth  your  father,  to  which  her  daughter 
answered,  that  he  had  a  cold,  to  which  his  wife  replied,  here  is  a  good 
powder  for  him,  give  it  him  in  his  posset;;  and  on  this  the  daughter 
carried  home  tlie  powder,  and  told  all  this  that  her  mother  had  said  to 
her,  and  to  her  other  sister,  who  in  her  absence  gave  the  powder  to 
her  father  in  his  posset,  of  which  he  died.  And  he  said  that,  upon 
conference  witli  all  the  judges,  it  was  resolved  that  the  wife  was  prin- 
cipal in  the  murder,  and  also  the  man  with  whom  she  ran  away,  he 
being  proved  to  be  advising  in  the  poison  ;  but  the  two  daughters  were 
in  no  fault,  they  both  being  ignorant  of  the  poison.  And  accordingly, 
the  man  was  hanged,  and  the  mother  burnt. 


378  REGINA   V.   MITCHELL.  [CHAP.  X. 


REGINA  V.  MITCHELL. 
Crown  Case  Reserved.    1840. 

[Reported  2  Moody,  120.] 

The  prisoner  Catherine  Michael  was  tried  before  Mr.  Baron  Alder- 
son  at  the  Central  Criminal  Court  in  April,  1840  (Mr.  Justice  Littledalf 
being  present),  for  the  wilful  murder  of  George  Michael,  an  infant  of 
the  age  of  nine  months,  by  administering  poison.* 

It  appeared  in  evidence  that  the  prisoner,  on  the  27th  day  of  March 
last,  delivered  to  one  Sarah  Stephens,  with  whom  the  child  was  at 
nurse,  a  quantity  of  laudanum,  about  an  ounce,  telling  the  said  Sarah 
Stephens  that  it  was  proper  medicine  for  tlie  child  to  take,  and  direct- 
ing her  to  administer  to  the  child  every  night  a  teaspoonful  thereof ; 
that  such  a  quantity  as  a  teaspoonful  was  quite  sufficient  to  kill  a  child  ; 
and  that  the  prisoner's  intention,  as  shown  by  the  finding  of  the  jury, 
in  so  delivering  the  laudanum  and  giving  such  directions  as  aforesaid, 
was  to  kill  the  child. 

That  Sarah  Stephens  took  home  with  her  the  laudanum,  and  thinking 
the  child  did  not  require  medicine  had  no  intention  of  administering  it. 
vShe,  however,  not  intending  to  give  it  at  all,  left  it  on  the  mantelpiece 
of  her  room,  which  was  in  a  different  house  from  where  the  prisoner 
resided,  she,  the  prisoner,  then  being  a  wet  nurse  to  a  lady  ;  and  some 
daj's  afterwards,  that  is,  on  the  31st  of  March,  a  little  boy  of  the  said 
Sarah  Stephens,  of  the  age  of  five  j'ears,  during  the  accidental  absence 
of  Sarah  Stephens,  who  had  gone  from  home  for  some  hours,  removed 
the  laudanum  from  its  place  and  administered  to  the  prisoner's  child 
a  much  larger  dose  of  it  than  a  teaspoonful,  and  the  child  died  in  con- 
sequence. 

The  jury  were  directed  that  if  the  prisoner  delivered  to  Sarah  Stephens 
the  laudanum,  with  intent  that  she  should  administer  it  to  the  child  and 
thereby  produce  its  death,  the  quantity  so  directed  to  be  administered 
being  sufficient  to  cause  death  ;  and  that  if  (the  prisoner's  original  in- 
tention still  continuing)  the  laudanum  was  afterwards  administered  by 
an  unconscious  agent,  the  death  of  the  child  under  such  circumstances 
was  murder  on  the  part  of  the  prisoner. 

They  were  directed  that  if  the  teaspoonful  of  laudanum  was  sufficient 
to  produce  death,  the  administration  by  the  little  boy  of  a  much  larger 
quantity  would  make  no  difference. 

The  jury  found  the  prisoner  guilty.  The  judgment  was  respited, 
that  the  opinion  of  the  judges  might  be  taken  whether  the  facts  above 
stated  constituted  an  administering  of  the  poison  by  the  prisoner  to 
the  deceased  child. 

This  case  was  considered  by  all  the  judges  (except  Gurnet,  B.,  and 
Maule,  J.),  in  Easter  term,  1840,  and  they  were  unanimously  of  opinion 
that  the  conviction  was  right. 

1  The  indictment  is  omitted. 


SECT.  II.]  REGINA   V.    BANNED.  37^ 


REGINA   r.  BANNEN. 
CuowN  Cask  Resekvkd.     1844. 

[/i, ported  -l  Moifiiy,  309] 

The  prisoner  was  triocl  })efore  Mr.  Bjirou  flfRSEY,  at  the  Spring 
Assizes  for  tlie  county  of  Warwick,  1841,  on  an  iudictnient  for  feloni- 
ously making  a  die,  which  would  impress  the  figure,  stamp,  and 
apparent  resemblance  of  the  obverse  side  of  a  shilling. 

Second  count,  for  feloniously  beginning  to  make  such  a  die. 

Third  count,  for  feloniously  making  a  die  which  was  intended  to 
impress  the  figure,  stamp,  and  ai)i)arent  resemblance  of  the  obverse 
side  of  a  shilling. 

It  was  proved  by  Charles  Frederick  Carter,  a  die-sinker  at  Birming- 
ham, that  the  prisoner  applied  to  him  to  sink  two  dies  for  counters  for 
two  whist  clubs,  one  at  Exeter  and  the  other  at  Blandford,  stating 
that  it  was  their  practice  to  play  with  counters  with  one  side  resem- 
bling coins,  and  tliat  they  wished  to  have  counters  stamped  by  dies, 
to  be  made  in  pursuance  of  the  following  directions :  — 

Four  dies  for  whist  counters  ;  obverse,  head  of  Queen  Victoria,  as  in 
the  shilling  coin  ;  reverse,  Blandford  whist  club,  established  1800. 
Obverse,  one  shilling,  as  in  coin,  with  wreath,  etc. ;  reverse,  Exeter 
whist  club,  established  in  1800.  The  obverse  to  be  as  much  Vi  facsimile 
as  can  be ;  the  letters  on  the  reverse  to  vary  in  size  ;  all  the  dies  to  be 
the  same  size,  and  fit  either  collar. 

When  IVfr.  Carter  considered  these  directions,  it  occurred  to  him  that 
there  was  something  very  suspicious  in  them,  and  he  applied  to  the 
agent  of  the  mint  at  Birmingham,  and  communicated  the  order  to  him. 
The  agent  sent  to  the  officers  of  the  mint  in  London  for  instructions, 
and  Mr.  Carter  was  by  them  directed  to  execute  the  prisoner's  order. 
He  proceeded  ;  a  long  correspondence  took  place  on  account  of  the 
work  not  being  executed  within  the  time  expected.  In  the  course  of 
the  correspondence,  the  prisoner  desired  to  have  the  obverse  of  one  of 
the  pieces  and  the  obverse  of  the  other  finished  first,  and  they  were 
so.  When  they  were  finished,  they  formed  a  die  for  the  coining  of  a 
shilling,  and  an  impression  made  by  the  dies  was  produced  in  court. 

Mr.  Serjf.  Adamfi,  for  the  prisoner.,  objected  that  the  prisoner  could 
not  be  convicted,  as  he  had  not  himself  done  anything  in  the  construc- 
tion of  the  die,  and  that  he  was  not  answerable  in  this  form  of  charge 
for  the  act  of  Carter  ;  that  Carter  having  acted  under  the  instructions 
of  the  mint,  no  felony  whatever  had  been  committed  ;  and  that  the 
prisoner  should  have  been  indicted  for  a  misdemeanor,  in  inciting 
Carter  to  commit  a  felony. 

The  learned  judge  reserved  the  point  for  the  opinion  of  the  judges. 
The  jury  found  the  prisoner  guilty. 


♦380  KEGINA    r.    BAXNEX.  [CHAP.  X. 

This  case  was  argued  in  Easter  term,  1844,  before  all  the  judges 
except  CoLEKiDGE,  J.,  and  Maule,  J. 

Whitehurst,  for  the  prisoner.  The  prisoner  did  not  commit  the  offence 
as  charged  in  the  indictment.  The  statute  2  W.  IV.,  c.  34,  s.  10,  enacts 
that  "  if  any  person  shall  knowingly  and  without  lawful  authority  (the 
proof  of  which  authority  shall  lie  on  the  party  accused)  make,  &c.,  or 
begin  to  make,  any  punelieon.  &c.,die,  &c.,such  person  shall  be  guilty 
of  felony."  Here  no  person  has  without  lawful  authority  made  or  begun 
to  make  a  die.  The  only  person  who  has  in  fact  made  or  begun  to 
make  a  die  is  Carter.  Before  Carter  begins,  he  applies  to  the  mint. 
He  must  be  taken  to  have  known  the  law,  and  applies  to  get  their 
authority  to  proceed.  The  officers  of  the  mint  gave  him  orders  to  pro- 
ceed ;  he  therefore  had  lawful  authority.  If  they  had  power  to  give 
the  authority,  then  there  was  no  offence.  If  they  had  not,  then  Carter 
is  guilty  of  the  felony  as  a  principal,  and  the  prisoner  ought  to  have 
been  indicted  as  an  accessory  before  the  fact.  If  Carter  was  innocent, 
the  prisoner  could  not  be  an  accessory,  nor  could  he  be  a  principal ;  he 
is  not  present ;  and  if  another  does  the  act  for  him  in  his  absence,  that 
person  must  be  altogether  innocent ;  to  be  innocent  he  must  be  igno- 
rant of  any  wrong  in  what  he  is  doing.  Suppose  a  person  knowingly 
employs  an  ignorant  agent  to  deliver  a  forged  note  ;  the  delivery  is 
his,  because  the  agent  is  ignorant :  so  if  a  person  employs  an  ignor- 
ant agent  to  administer  poison,  that  person  may  be  said  himself  to 
administer.  Carter  here  cannot  be  said  to  be  ignorant.  He  knows 
the  use  to  which  the  dies  are  applicable  and  the  guilty  purpose  for  which 
they  were  intended  by  the  prisoner.  The  dies  are  also  made  with  the 
knowledge  of  the  mint.  For  these  reasons  Carter  cannot  be  said  to 
be  a  mere  ignorant  agent  of  the  prisoner,  and  therefore  the  prisoner 
cannot  be  a  principal  felon. 

Waddingtofi,  for  the  Crown.  There  is  no  doubt  that,  if  Carter  was 
guilty  of  felony,  this  indictment  fails.  But  it  is  impossible  to  contend 
that  on  these  facts  Carter  was  a  felon.  Perhaps,  strictly  speaking,  no 
one  could  have  lawful  authority  to  make  coining  instruments  ;  certainly 
not,  if  Carter  had  not. 

[TixDAL,  C.  J.  The  '•  having  lawful  authority  "  applies  to  the  oflScers 
and  servants  of  the  mint.] 

It  is  agreed  that  in  one  sense  he  did  the  act  knowingly ;  but  mere 
knowledge  is  not  enough.  The  statute  means  guilty  knowledge  ;  and 
that  is  the  distinction  clearly  pointed  out  in  Foster's  "Discourse  on 
AccorapUces,"  p.  349,  etc.  To  be  a  felon  there  must  be  a  guilty  knowl- 
edge. The  cases  of  the  child  or  madman  are  well  established.  Now 
Carter  certainly  knew  what  he  was  doing,  but  had  no  intention  of  any 
felony  or  furthering  a  felony  ;  and  the  authority  and  knowledge  of  the 
mint  would  be  clearly  sufficient  to  make  his  knowledge  innocent. 

In  Rex  V.  Palmer  and  Hudson,  Russ.  &  Ry.  72,  which  is  reported 
with  the  judgment  delivered  by  Rooke,  J.,  1  B.  &  P.  New  Rep.  97, 
this  distinction  is  carried  out,  and  the  case  put  of  an  uttering  a  forged 


SErr.  in.]  rex  r.  bisglet.  381 

note  by  means  of  an  agent  ignorant  of  the  foi^ery  is  stated  to  be  law. 
This  has  since  been  hoKl  to  Ik?  law  in  Rex  r.  Giles,  1  Moody  C.  C.  K. 
166.  The  agent  must  be  an  innocent  .agent  The  cases  all  turn  on 
the  distinction  of  innocent  knowleiige  or  guilty  knowleilge.  Carter 
was  clearly  an  innocent  agent,  and  the  prisoner  was  therefore  the 
principal. 

IVhitehurst,  in  reply.  Here  Cirter,  the  agent,  in  fact  does  nothing 
at  .all  until  he  h.as  the  orviers  of  the  mint.  He  is,  throughout,  the  agent 
of  the  mint,  not  of  tlie  prisoner. 

All  the  judges  present,  except  Cresswell,  J.,  thought  Carter  an 
innocent  agent,  and  held  the  conviction  good.* 


SECTION   III. 

Joint  Principals. 

REX   r.   BINGLEY. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  .V  Rfam,  446.] 

The  three  prisoners  were  tried  and  convicted  before  Mr.  Jcsticb 
RiCHARDSox.  at  the  Lent  assizes  for  the  county  of  Warwick,  iu  the 
year  1"<2I.  on  an  indictment  the  first  count  of  which  charged  the 
prisoners  with  forging  aud  counterfeiting  a  £.5  bank  note,  with  intent 
to  defraud  the  Gk>vernor  and  Company  of  the  Bank  of  England.  The 
third  count  charged  them  with  falsely  making,  foiling,  and  cx^unter- 
feiting.  and  causing  and  procuring  to  be  falsely  made,  forged,  and 
counterfeited!,  and  willingly  acting  aud  assisting  in  the  false  making, 
forsing,  and  counterfeiting,  a  promissory  note,  for  the  pa\-ment  of 
money,  with  the  like  intent.  There  were  other  counts  for  disposing 
of,  and  putting  away  scienter.  &c. 

It  appeared  in  evidence  that  Bingley  and  Dntton.  and  one  George 
Peacock,  an  accomplice,  agree*!  to  take,  and  did  take  a  house  in  Bir- 
mingham, for  the  purj>ose  of  carrying  on  therein  the  manufacture  of 
forged  bank  notes.  The  first  operation  was  the  purchasing  of  proper 
pajK^r,  and  the  cutting  of  it  into  pieces  of  proper  size :  after  which  it 
was  taken  to  the  prisoner  Batkin.  a  copper-plate  printer,  whose  work- 
shop was  in  a  ditferent  part  of  Bimiingbara.  to  be  by  him  printed,  and 
he  accordingly  struck  off  in  blank  all  the  printed  part  of  the  notes, 

»  See  (ux,  Reg.  r.  Clifford,  2  C.  &  K.  202:  R^.  r.  Bleasdale.  2  C.  *  K.  765;  Gnvonr 
».  SUte,  «J  Ohio  St  510 ;  Sute  c.  Lrtimaixl,  41  Vt.  5S5.  And  see  Williamson  r.  St.r.?, 
1«  AIa.  431;  Com.  r.  BQll,  145  Mass.  305.  —  Ep. 


332  REX   V.    BINGLEY.  [cHAP.  X. 

except  the  date  Hue  and  the  number.  He  also  impressed  ou  the  paper 
the  wavy  horizontal  lines. 

The  blanks  were  then  brought  back  to  the  house  of  Bnigley,  Button, 
&  Peacock,  and  there  the  water  mark  was  introduced  into  the  paper ; 
after  which  Bingley,  in  the  presence  of  Dutton  and  Peacock,  impressed 
tlie  date  line  and  the  number,  and  Dutton  added  the  signature. 

Sometimes  the  date  line  and  number  were  inserted  before  the  signa- 
ture was  inserted,  and  sometimes  the  signature  before  the  date  line 
and  number ;  but  in  a  certain  class  of  notes  (of  which  the  note  in  the 
itidictment  was  one)  the  accomplice  said  that  the  signature  was  added 
last. 

The  notes  were  then  complete,  although  they  underwent  another 
operation,  that  of  pressing  them  between  plain  sheets  of  tin,  in  order 
to  make  the  surface  smooth,  before  they  were  put  into  circulation. 

Peacock,  the  accomplice,  did  not  know  that  Batkin  was  employed  to 
print  the  blank  notes,  nor  did  it  appear  that  Batkin  ever  was  present 
when  Bingle}'  and  Dutton  filled  up  and  completed  the  notes. 

The  accomplice  stated  that  Bingley  and  Dutton  were  both  present 
when  Bingley  impressed  the  date  line  and  number  on  that  class  of 
notes  of  which  the  note  stated  in  the  indictment  was  one,  but  he  said 
he  was  not  certain  whether  Bingley  was  present  when  Dutton  after- 
wards added  the  signature  to  the  class  of  notes. 

The  prosecutors  elected  to  proceed  on  the  counts  for  forging. 

Upon  this  evidence  the  learned  judge  left  it  to  the  jury  whether 
the  three  prisoners  did  concur  and  co-operate  in  the  joint  design  of 
forging  the  five-pound  note  mentioned  in  the  indictment  (among  other 
notes)  with  intent  to  put  it  into  circulation,  and  whether  they  all  did 
perform  their  respective  part  in  the  execution  of  that  design  within 
the  county  of  Warwick.  If  so,  the  learned  judge  advised  them  to  find 
them  all  guilty  of  the  forgery. 

The  learned  judge  further  directed  them  to  find  whether  the  two 
prisoners,  Bingley  and  Dutton,  were  present  when  the  note  mentioned 
in  the  indictment  was  completed  by  adding  the  date  line  and  the 
signature. 

The  jury  found  that  all  three  concurred  and  co-operated  in  the  de- 
sign and  execution  of  the  forgery,  each  taking  his  own  part,  within 
the  county.  They  also  found  that  Bingley  and  Dutton  acted  together 
in  completing  the  notes,  and  therefore  found  all  three  guilty  on  the 
counts  for  forging. 

The  learned  judge  passed  sentence  on  the  prisoners ;  but  respited 
their  execution,  in  order  to  submit  to  the  judges  the  following  ques- 
tions :  — 

First,  Do  the  acts  of  parliament  which  relate  to  the  forging,  &c., 
and  causing  to  be  forged,  ifec,  and  acting  and  assisting  in  the  forging, 
&c.,  of  promissory  notes  apply  to  Bank  of  England  notes,  which, 
although  they  are  undoubtedly  promissory  notes,  are  the  subject  of 
distinct  legislative  provisions  ? 


SECT.  IV.]  COMMONWEALTH    V.    KN'APP.  383 

Secondly,  Upon  the  evidence  aiul  the  finding  of  tlic  jury,  was  this 
a  joint  odence  of  forging  in  the  three  prisoners,  or  at  least  in  the  iwo 
prisoners,  Hingley  and  Dutton?^ 

In  Kaster  term,  1821,  the  judges  met  anil  considered  this  case.  They 
lield  that  the  conviction  was  right  as  to  all  the  prisoners:  the  judges 
were  of  opinion  that,  as  each  of  the  prisoui-rs  acted  in  completing 
some  part  of  the  forgery,  and  in  pursuance  of  the  common  plan,  each 
was  a  principal  in  the  forgery  ;  and  that  although  the  prisoner  liatkin 
was  not  present  when  the  note  was  completed  by  the  signature,  he 
was  eipially  guilty  with  the  others.'' 


SECTION   IV. 

Principals  in  the  Second  Degree. 

COMMONWEALTH  v.   KNAPP. 
Supreme  Judicial  Coukt  of  Massachusetts.     1830. 

[Reported  9  Pickerin-j,  496  ] 

John  Francis  Knait  was  indicted  as  principal,  together  with 
Joseph  Jenkins  Knapp  and  George  Crowninshield  as  accessories,  in 
the  murder  of  Joseph  White  of  Salem,  which  was  perpetrated  on  the 
6th  of  April,  1830.  The  indictment  alleged  that  Richard  Crownin- 
shield also  was  a  principal,  and  that  he  had  committed  suicide.  The 
parties  indicted  were  tried  separately.* 

The  evidence  in  the  case  tended  to  prove  that  Richard  Crowninshield 
alone  entered  the  house  of  White  and  there  perpetrated  the  murder, 
and  that  the  prisoner  was  in  a  street  about  300  feet  distant  from  the 
house,  aiding  and  abetting. 

Putna.m,  J.,  delivered  the  opinion  of  the  court.  By  the  most  ancient 
common  law,  as  it  was  generally  understood,  those  persons  only  were 
considered  as  principals  in  murder  who  actually  killed  the  man,  and 
those  who  were  present,  aiding  and  abetting,  were  considered  as  ac- 
cessories. So  that  if  he  who  gave  the  mortal  blow  were  not  convicted, 
he  who  was  present  and  aiding,  being  only  an  accessory,  could  not  he 
put  upon  his  trial.  Hut  the  law  was  otherwise  settled  in  the  reigii  of 
Henry  IV.  It  was  then  adjudged  that  he  who  was  prese7it,  (tiding 
and  abetting  him  who  actually  killed,  was  to  be  considered  as  actually 
killing,  as  much  as  if  he  himself  had  given  the  deadly  blow. 

[To  the  jury.]     There  is  no  evidence  that  the   prisoner  gave  the 

*  The  loarnc'l  judge  here  called  the  attention  of  the  court  to  2  East  P.  C.  c.  19,  a. 
62.  —  Ed. 

■■'  Arc.  Rox  K.  Kirkwootl,  1  Moody,  304.  —  Ed. 

'  Part  of  the  case,  nut  involTing  the  question  of  principal  auJ  accessory,  is  omitted 


384  COMMONWEALTH   V.   KNAPP.  [CHAP.  X. 

mortal  blows  with  his  own  hand ;  but  it  is  contended  on  the  part  of 
the  government  that  he  was  present,  aiding  and  abetting  the  perpe- 
trator, at  the  time  when  the  crime  was  committed.  We  are  therefore 
to  consider  what  facts  are  necessary  to  be  proved  to  constitute  him, 
who  is  aiding  and  abetting,  to  be  a  principal  in  the  murder ;  or,  in 
other  words,  what,  in  the  sense  of  the  law,  is  meant  b}'  being  present^ 
aiding  and  abetting. 

It  is  laid  down  in  Foster's  Crown  Law,  349,  350,  Discourse  3,  §  4, 
^-  that  "when  the  law  requireth  the  presence  of  the  accomplice  at  the 
"^i       perpetration  of  the  fact,  in  order  to  render  him  a  principal,  it  doth  not 
'       require  a  strict,  actual,  immediate  presence,  such  a  presence  as  would 
make  him  an  eye  or  ear  witness  of  what  passeth.     Several  persons  set 
out  together,  or  in  small   parties,   upon  one   common  design,   be  it 
murder  or  other  felony,  or  for  any  other  purpose  unlawful  in  itself, 
and  each  taketh  the  part   assigned  him ;  some  to  commit  the  fact, 
others  to  watch  at  proper  distances  and  stations  to  prevent  a  surprise, 
or  to  favor,  if  need  be,  the  escape  of  those  who  are  more  immediately 
engaged.     They  are  all,  provided  the  fact  be  committed,  in  the  eye  of 
the  law  present  at  it ;  for  it  was  made  a  common  cause  with  them ; 
each  man  operated  in  his  station  at  one  and  the  same  instant  towards 
the  common  end ;  and  the  part  each  man  took  tended  to  give  counte- 
nance, encouragement,  and  protection  to  the  whole  gang,  and  to  in- 
sure the  success  of  their  common  enterprise."     In  §  5,  —  "  In  order  to 
f^  render  a  person  an  accomplice  and  a  principal  in  felon}',  he  must  be 

1  aiding  and  abetting  at  the  fact,  or  ready  to  afford  assistance  if  neces- 
sary." So,  in  1  Hawkins's  P.  C.  c.  82,  s.  7  (7th  ed.)  being  present  in 
judgment  of  the  law  is  equivalent  to  being  actually  present,  for,  says 
Hawkins,  "  the  hope  of  their  immediate  assistance  encourages  and 
emboldens  the  murderer  to  commit  the  fact,  which  otherwise  perhaps 
he  would  not  have  dared  to  do,  and  makes  them  guilty  in  the  same 
degree  [as  principals]  as  if  they  had  actually  stood  b}^  with  their 
swords  drawn,  ready  to  second  the  villany."  These  principles  have 
been  fully  recognized  by  the  very  learned  and  distinguished  chief  jus- 
tice of  the  Supreme  Court  of  the  United  States,  in  4  Cranch,  492. 

The  person  charged   as   principal  in  the  second  degree  must  be 
present;  and  he  must  be  aiding  and  abetting  the  murder.     But  if  the 
abettor,  at  the  time  of  the  commission  of  the  crime,  were  assenting  to 
the  murder,  and  in  a  situation  where  he  might  render  some  aid  to 
the  perpetrator,  ready  to  give  it   if  necessary,  according   to   an   ap- 
pointment or  agreement  with  him  for  that  purpose,  he  would,  in  the 
judgment  of  the  law,  be  present  and  aiding  in  the  commission  of  the 
(  crime.     It  must  therefore  be  proved  that  the  abettor  was  in  a  situation, 
j  in  which  he  might  render  his  assistance,  in  some  manner,  to  the  com- 
■  mission  of  the  offence.     It  must  be  proved  that  he  was  in  such  a  situ- 
ation, b}'  agreement  with  the  perpetrator  of  the  crime,   or  with  his 
j  y       previous  knowledge,  consenting  to  the  crime,  and  for  the  purpose  of 
rendering   aid  and  encouragement  in  the  commission  of  it.     It  must 


SECT.  IV.]  COMMONWEALTH   V.    KNAPP.  385 

also  be  proved  that  he  wus  actually  aiding  and  abetting  the  perpe- 
trator at  the  time  of  the  murder.  Hut  if  the  abettor  were  consenting 
to  the  murder,  and  in  a  situation  in  whicli  he  might  render  any  aid, 
by  arrangement  with  the  perpetrator,  for  the  purpose  of  aiding  and 
assisting  him  in  the  murder,  then  it  would  follow  as  a  necessary  legal 
inference,  that  he  was  actually  aiding  and  abetting  at  the  commission 
of  the  crime.  For  the  presence  of  the  al)ettor  under  such  circum- 
stances must  encourage  and  embolden  the  perpetrator  to  do  the  deed, 
by  giving  him  hopes  of  immediate  assistance  ;  and  this  would  in  law- 
be  considered  as  actually  aiding  and  abetting  him,  although  no  fur- 
ther assistance  should  be  given.  For  it  is  clear  that  if  a  person  is 
present  aiding  and  consenting  to  a  murder  or  other  felony,  that  alone 
is  sufficient  to  charge  him  as  a  principal  in  the  crime.  And  we  have 
seen  that  the  presence  by  construction  or  judgment  of  the  law  is  in 
this  respect  equivalent  to  actual  presence. 

We  do  not,  however,  assent  to  the  position  which  has  been  taken  by 
the  counsel  for  the  government,  that  if  it  should  be  proved  that  the 
prisoner  conspired  with  others  to  procure  the  murder  to  be  committed, 
it  follows,  as  a  legal  presumption,  that  the  prisoner  aided  in  the  actual 
perpetration  of  the  crime  unless  he  can  show  the  contrary  to  the  jury. 
The  fact  of  the  conspiracy  being  proved  against  the  prisoner  is  to  be 
weighed  as  evidence  in  the  case,  having  a  tendency  to  prove  that  the 
prisoner  aided,  but  it  is  not  m  itself  to  be  taken  as  a  legal  presump- 
tion of  his  having  aided  unless  disproved  h\  him.  It  is  a  question  of 
evidence  for  the  consideration  of  the  jury. 

If,  however,  the  jury  should  be  of  opinion  that  the  prisoner  was  one 
of  the  conspirators,  and  in  a  situation  in  which  he  might  have  given 
some  aid  to  the  perpetrator  at  the  time  of  the  murder,  then  it  would 
follow,  as  a  legal  presumption,  that  he  was  there  to  carry  into  effect 
the  concerted  crime ;  and  it  would  be  for  the  prisoner  to  rebut  the  pre- 
sumption, by  showing  to  the  jury  that  he  was  there  for  another  pur- 
pose unconnected  with  the  conspiracy.  "We  are  all  of  opinion  that 
these  are  the  principles  of  the  law  applicable  to  the  case  upon  trial.^ 

'  Ace.  Rex  V.  Owen,  1  Moody,  96;  Rex  v.  Dyson,  Russ.  &  Ry.  523  ;  Thomas  v. 
State,  43  Ark.  149;  Doan  v.  State,  26  Ind.  495;  State  v.  Douglass,  34  La.  Ann.  523; 
State  V.  Jones,  83  N.  C.  605.  See  Amos  v.  State,  83  Ala.  1.  Conf.  People  v.  Wood- 
ward, 45  Cal.  293;  State  v.  Hildreth,  9  Ired.  440. 

"If  three  thieves  come  to  a  man's  house,  and  one  forces  and  enters  the  house,  and 
the  other  two  stand  outside  in  the  meantime,  they  shall  all  three  be  taken  and  con- 
victed of  this,  whatever  judgment  you  may  think  will  be  passed  on  the  two."  —  Spig- 
ONEL,  J.,  in  Y.  B.  30  &  31  Ed.  I.  p.  108.  — Ed. 


386  BREESE  V.   STATK  [CHAP.  X. 


BREESE  V.   STATE. 
Supreme  Court  of  Ohio.     1861. 

[Reported  12  Ohio  State,  146.] 

Peck,  J.*  Did  the  court  err  in  tliat  portion  of  its  charge  to  the  jury 
which  is  stated  in  the  bill  of  exceptions  ?  The  charge,  which  is  copied 
into  the  statement  of  the  case,  and  which,  on  account  of  its  length,  I 
do  not  propose  to  repeat  here,  was,  substantially,  that  if  the  jury 
should  find,  beyond  a  reasonable  doubt,  from  the  testimon}-,  that  the 
defendant  had  agreed  with  others  to  commit  the  burglar}-,  on  the 
night  on  which  it  was  done,  and  that,  as  a  part  of  said  agreement, 
and  to  facilitate  the  breaking  and  entry  and  lessen  the  chances  of 
detection,  it  was  agreed  that  the  defendant  should  on  that  night  pro- 
cure or  decoy  the  owner,  Whetstone,  away  from  the  store  in  which  he 
usually  slept,  to  a  party,  about  a  mile  distant,  and  detain  him  there 
while  the  other  confederates  were  to  break  and  enter  said  store  and 
remove  the  goods,  and  that  both  parties  did,  in  fact,  perform  their 
respective  parts  of  said  agreement,  that  then  the  defendant  was  con- 
structively present  at  the  breaking  and  entry  b}-  his  confederates,  and 
might  be  convicted  as  principal  therein  if  all  the  other  material  allega- 
gations  were  proved  beyond  a  reasonable  doubt. 

We  are  free  to  say  that  this  charge,  if  there  was  evidence  tending  to 
prove  it,  is  unexceptionable. 

"  Any  participation  in  a  general  felonious  plan,  provided  such  par- 
ticipation be  concerted,  and  there  be  a  constructive  j)resence,  is  enough 
to  make  a  man  principal  in  the  second  degree."  Wharton's  C.  L.  113, 
and  the  case  cited  by  Wharton  to  establish  the  rule  shows  what  is 
meant  by  a  "  constructive  presence." 

"  If  several  act  in  concert  to  steal  a  man's  goods,  and  he  is  induced  by 
fraud  to  trust  one  of  them,  in  the  presence  of  the  others,  with  the  pos- 
session of  such  goods,  and  another  of  them  entices  him  awa}',  that 
the  man  who  has  the  goods  may  carry  them  off,  all  are  guiltj'  of  the 
felony."     Rex  v.  Standley  and  others,  Russ.  and  Ry.  C.  C.  305. 

The  defendant  was,  by  the  agreement,  not  only  to  procure  Whet- 
stone to  go  to  the  party  ''  to  give  his  confederates  greater  security 
from  detection  while  in  the  act  of  breaking  into  the  store,"  but  the 
jury  were  required  to  find,  as  a  part  of  the  supposed  case,  that  the 
defendant  "  kept  him  there  while  his  confederates  were  engaged  in 
breaking  said  store,  and  in  concealing  the  fruits  of  said  crime  in  pur- 
suance of  said  previous  confederacy." 

The  charge  would  therefore  seem  to  fall  within  the  well-known  rule 
stated  in  Archbold  C.  L.  10,  "  that  persons  are  said  to  be  present, 
who  are  engaged  in  the  same  design  with  the  one  who  actuall}-  com- 

1  Part  of  the  opinion  only  is  given- 


SECT,  v.]  ACCESSORIES.  387 

ruits  the  offence,  although  not  actually  present  at  the  commission  of 
it,  yet  arc  at  such  convonient  distance  as  to  be  able  to  come  to  lb»i 
assistance  of  their  associates  if  recjuired,  or  to  watch  to  prevent  sur- 
prise or  the  like." 

Bishop,  in  section  4G0,  vol,  i.  of  his  Treatise  upon  Criminal  Law, 
says:  "  If  the  will  of  such  other  one  contributed  to  the  act,  the  test  to 
determine  whether  the  law  deems  him  a  principal  rather  than  an  acces- 
sory is,  whellier  he  was  so  near,  or  otherwise  so  situated,  as  to  make 
his  personal  help,  If  required,  to  any  degree  available." 

The  part  assigned  by  the  agreement  to  the  defendant  —  a  constant 
supervision  over  Whetstone  while  the  burglary  was  efTected  —  formed 
an  essential  part  of  the  plan  of  the  burglary  agreed  upon,  as  much  so 
as  the  rending  of  the  shutter,  or  the  forcing  of  the  door.  And  the 
defendant,  in  the  case  supposed,  was  constructively  present  at  the 
Inirglary,  if  Jones  who,  in  the  case  from  Russ.  and  Ry.  supra,  enticed 
McLaughlin  away,  was  constructively  present  at  the  subsequent  aspor- 
tation of  McLaughlin's  money  by  his  confederates,  Standley  and 
Webster. 

So,  in  Iless  v.  The  State,  5  Ohio  12,  it  is  said :  "  And  in  general,  if 
several  unite  in  one  common  design,  to  do  some  unlawful  act,  and  each 
takes  the  part  assigned  him,  though  all  are  not  actually  present,  yet 
all  are  present  in  the  eye  of  the  law;"  citing  Foster,  450,  353;  1 
Hale's  P  C.  439 ;  2  Starkie's  Ev.  7.' 


SECTION  V. 

Accessories. 


2  Hawkins  P.  C.  c.  29,  s.  16.  It  seems  to  be  agreed  that  those  who 
by  hire,  command,  counsel,  or  conspiracy,  and  it  seems  to  be  generally 
holden  that  those  who  by  showing  an  express  liking,  approbation,  or 
assent  to  another's  felonious  design  of  committing  a  felony,  abet  and 
encourage  him  to  commit  it,  but  are  so  far  absent  when  he  actually 
commits  it  that  he  could  not  be  encouraged  by  the  hopes  of  any  imme- 
diate help  or  assistance  from  them,  are  all  of  them  accessories  before 
the  fact,  both  to  the  felony  intended  and  to  all  other  felonies  which 
shall  happen  in  and  by  the  execution  of  it,  if  they  do  not  expressly 
retract  and  countermand  their  encouragement  before  it  is  actually 
committed. 

2  Hawkins  P.  C.  c.  29,  ss.  26,  27,  34,  35.  As  to  what  kind  of 
receipt  of  a  felon  will  make  the  receiver  an  accessory  after  the  fact,  it 
seems  agreed   that  generally   any  assistance  whatever  given  to  one 

»  See  SUte  v.  Poynier,  36  La.  Ann.  572  ,  SUte  v.  Hamilton,  13  Nev.  386.  —  Ed. 


\ 


388  REGINA   V.   CLAYTON.  [CHAP.  X. 

known  to  be  a  felon,  in  order  to  hinder  his  being  apprehended  or  tried 
or  suffering  the  punishment  to  which  he  is  condemned,  is  a  sufficient 
receipt  for  this  purpose,  —  as  where  one  assists  him  with  a  horse  to 
ride  away  with,  or  with  money  or  victuals  to  support  him  in  his  escape  ; 
or  where  one  harbors  and  conceals  in  his  house  a  felon  under  pursuit,  by 
reason  whereof  the  pursuers  cannot  find  him  ;  and  much  more,  where 
one  harbors  in  his  house,  and  openly  protects  such  a  felon,  by  reason 
whereof  the  pursuers  dare  not  take  him.^ 

Also  I  take  it  to  be  settled  at  this  day  that  whoever  rescues  a  felon 
from  an  arrest  for  the  felony,  or  voluntarily  suffers  him  to  escape,  is 
an  accessory  to  the  felony. 

It  seems  agreed  that  the  law  hath  such  a  regard  to  that  duty,  love, 
and  tenderness  which  a  wife  owes  to  her  husband  as  not  to  make  her 
an  accessory  to  felony  by  any  receipt  whatsoever  given  to  her  husband. 
Yet  if  she  be  any  way  guilty  of  procuring  her  husband  to  commit  it, 
it  seems  to  make  her  an  accessory  before  the  fact  in  the  same  manner 
as  if  she  had  been  sole.  Also,  it  seems  agreed  that  no  other  relation 
beside  that  of  a  wife  to  her  husband  will  exempt  the  receiver  of  a  felon 
from  bemg  an  accessory  to  the  felony.  From  whence  it  follows  that 
if  a  master  receive  a  servant,  or  a  servant  a  master,  or  a  brother  a 
brother,  or  even  a  husband  a  wife,  they  are  accessories  in  the  same 
manner  as  if  they  had  been  mere  strangers  to  one  another. 

It  seems  to  be  clearly  agreed  that  a  man  shall  never  be  construed 
an  accessory  to  a  felony,  in  respect  of  the  receipt  of  an  offender,  who 
at  the  time  of  the  receipt  was  not  a  felon,  but  afterwards  becomes 
such  by  matter  subsequent,  —  as  where  one  receives  another  who  has 
wounded  a  person  dangerously,  that  happens  to  die  after  such  receipt." 


REGINA  V.  CLAYTON. 
Shropshire  Assizes.     1843. 

[Reported  1  Carrington  Sf  Kir  wan,  128.] 

Misdemeanor.  —  The  prisoners  were  Indicted  for  a  misdemeanor  in 
having  attempted  to  set  fire  to  a  certain  malt-house,  and  were  jointly 
charged  by  the  indictment  with  so  attempting. 

It  appeared  by  the  evidence  that  the  prisoner  Mary  Mooney  had 
gone  to  bed  an  hour  and  a  half  before  the  fire  was  discovered,  and 
there  was  every  reason  to  suppose  that  she  was  not  present  at  the  time 
when  the  fire  was  lighted  ;  and  the  evidence,  which  was  entirely  circum- 
stantial, tended  to  show  that  the  prisoner  Clayton  lighted  the  fire  only 
a  few  minutes  before  it  was  discovered.     Declarations  of  the  prisoner 

1  See  Tully  v.  Com.,  11  Bush,  154;  Wren's  Case,  26  Gratt.  952.  —Ed. 

2  See  Harrel  v.  State,  39  Miss.  702.  —  Ed. 


SECT.  V.J  COMMONWEALTH   V.    PHILLIPS.  389 

Mary  Mooney  were  proved  which  tended  to  show  that  she  knew  before- 
hand  that  the  fire  was  to  take  place. 

J.  G.  Fhillimore^  for  the  prisoners,  submitted  that  there  was  no 
case  against  tlie  prisoner  Mary  Mooney  on  this  indictment. 

Greaves.  AH  who  take  part  in  a  misdemeanor  are  principals,  and 
whatever  will  make  a  person  an  accessory  before  the  fact  in  a  felony 
makes  him  principal  in  a  misdemeanor. 

Williams,  J.  (in  summing  up).  In  misdemeanors  and  in  treason, 
all  who  take  part  in  the  crime  are  principals ;  and  in  this  case  it  is  not 
necessary  to  prove  that  the  prisoner  Mary  Mooney  was  present  at  the 
time  when  the  prisoner  Clayton  attempted  to  set  fire  to  the  malt-house  ; 
and  if  you  are  satisfied  that  she  counselled  and  encouraged  Clayton  to 
set  fire  to  the  malt-house,  she  may  be  convicted  upon  this  indictment.^ 

Verdict^  Not  guilty. 


REG  IN  A  V.  BROWN. 

Bristol  Assizes.     1878. 

[Reported  14  Cox  €.  C.  144.] 

Frederick  Brown  was  indicted  for  murder,  his  wife  being  also 
indicted  as  an  accessory  before  the  fact.  It  was  proved  that  the  blow, 
which  proved  fatal,  was  struck  within  a  few  feet  of  where  the  wife  was 
standing. 

Lord  Coleridge,  C.  J.,  directed  the  acquittal  of  the  female  prisoner, 
pointing  out  that  she  should  have  been  indicted  as  a  principal  if  any- 
thing. An  accessory  before  the  fact  must  be  absent  at  the  time  when 
the  crime  is  committed,  and  the  act  must  be  done  in  consequence  of 
some  counsel  or  procurement  of  his. 


COMMONWEALTH  v.  PHILLIPS. 
Supreme  Judicial  Court  of  Massachusetts.     1820. 

{Reported  16  Massachusetts,  423.] 

Indictment  at  the  last  March  term  in  this  county,  charging  one 
Thomas  Daniels  as  principal,  and  the  defendant  as  accessory  before 
the  fact,  in  burglary.  The  death  of  Daniels  was  alleged  in  the  indict- 
ment, and  the  question  was  whether  the  prisoner  Phillips  could  lawfully 
be  put  upon  his  trial.'' 

'  Ace.  Lasington's  Case,  Cro.  Eliz.  750  (petty  larceny);  Booth's  Case,  Moore,  666 
(forgery  at  common  law);  Rex  v.  Jackson,  1  Lev.  124  (perjury);  U.  S.  v.  Gooding,  12 
Wheat.  460  (fitting  out  vessel  for  slave  trade);  Sanders  y.  State,  18  Ark.  198  (obstruct- 
ing highway) ;  Stevens  v.  People,  67  III.  587  (keeping  gaming-house).  — Ed. 

*  Arguments  of  counsel  are  omitted. 


390  STARIN    V.    PEOPLE.  [CHAP.  X. 

Parker,  C.  J.,  stated  that  the  justices  had  carefully  examined  the 
books  upon  the  subject,  and  were  unanimously  of  opinion  that  b}*  the 
common  law  an  accessory  cannot  be  put  on  his  trial,  but  by  his  own 
consent,  until  the  conviction  of  the  principal.  The  reason  of  this  rule 
is  very  plain.  If  there  is  no  principal  there  can  be  no  accessory,  and 
the  law  presumes  no  one  guilty  until  conviction.  Statutes  have  made 
a  difference  as  to  some  lesser  species  of  offences,  Imt  do  not  touch  the 
principle  in  capital  cases.  Our  only  doubt  arose  from  the  peculiar  cir- 
cumstance in  this  case,  that  the  person  charged  as  principal  Is  dead, 
and  can  never  be  tried.  If  he  were  alive  and  on  trial,  it  is  possible 
he  might  establish  his  innocence,  strong  as  the  evidence  has  appeared 
in  support  of  his  guilt.  In  such  case  the  prisoner  could  not  be  found 
guilty,  for  he  could  not  have  been  accessory  to  the  commission  of  the 
crime  as  charged.  The  trial  might  have  been  stopped  at  the  com- 
mencement of  it  had  our  minds  been  then  free  from  all  doubt.  But 
as  the  prisoner  has  been  put  on  his  trial,  he  has  a  right  to  a  verdict. 

The  jury  accordingly,  under  the  direction  of  the  court,  Immediately 
returned  a  verdict  of  acquittal,  and  the  prisoner  was  discharged  of  this 
indictment.* 


STARIN   V.    PEOPLE. 
Court  of  Appeals  of  New  York.     1871. 

[Reported  45  New  York,  333.  J 

Church,  C.  J.^  The  plaintiff  in  error  was  indicted  as  accessory 
before  the  fact  to  the  crime  of  burglary  in  the  first  degree,  committed 
by  four  principals  named  in  the  indictment.  At  the  Montgomery  Oyer 
and  Terminer,  held  on  the  13th  day  of  May,  1867,  the  prisoner  hav- 
ing been  arraigned  and  plead  not  guilty  to  the  indictment,  the  district 
attorney  moved  the  trial  of  the  prisoner,  who,  by  his  counsel,  objected 
to  proceeding  with  the  trial  until  after  the  conviction  of  all  the  princi- 
pals named  in  the  indictment.  The  district  attorney  then  admitted  that 
but  one  of  the  principals  had  been  convicted,  that  one  other  was  then 
in  jail,  and  the  other  two  had  not  been  arrested.  The  objection  was 
then  overruled,  and  the  decision  excepted  to. 

Several  other  objections  were  raised  and  decided,  but  one  of  which 
it  is  necessary  to  notice,  and  as  to  that  the  record  is  as  follows:  The 
prisoner,  by  his  counsel,  then  objected  to  being  tried  as  accessory  to 
any  other  principal  than  the  one  who  was  convicted ;  the  court  over- 
ruled the  objection,  and  the  prisoner's  counsel  then  and  there  duly 
excepted. 

'  See  ace.  U.  S.  v.  Crane,  4  McLean,  317;  Simmons  v.  State,  4  Ga.  465;  White« 
head  v.  State,  4  Humph.  278  :  State  v.  Pybass,  4  Humph.  442.  See  Hatchett  v.  Com., 
/5  Va.  925;  Ogtlen  v.  State,  12  Wis.  632.  —  Ed. 

*  Part  of  the  opinion  only  ia  given. 


SECT,  v.]  STARIN   V.   PEOPLE.  39  L 

The  jury  were  then  impannelled,  and  the  trial  proceeded.  If  this 
exception  is  available  to  the  prisoner,  it  is  fatal  to  the  conviction  and 
judgment.  An  accessory  may  be  tried  jointly  with  the  principal,  but  the 
jury  must  first  agree  upon  the  guilt  of  the  principal,  while  an  acquittal 
of  the  principal  necessarily  acquits  the  accessory.  Wharton's  Crim. 
Law,  §  138.  If  the  accessory  is  not  tried  with  the  principal,  he  cannot 
be  tried  until  the  principal  has  been  tried  and  convicted.  People  v. 
Bacon,  1  Park  R.,  24G.  Formerly,  if  a  man  was  indicted  as  accessory 
in  the  same  crime  to  two  or  more  persons,  he  could  not  have  been 
arraigned  until  all  the  principals  were  convicted  and  attainted.  Hale's 
Pleas  of  the  Crown,  G23,  chap.  47.  And  in  order  to  try  an  accessory, 
when  only  one  of  several  principals  had  been  convicted,  it  was  necessary 
to  indict  and  arraign  him  as  accessory  to  that  one  only.     Id. 

But  the  modern  decisions  have  somewhat  modified  this  rule,  and  the 
weight  of  authority  now  is  that  an  accessory  may  be  tried  and  convicted 
when  one  only  of  several  principals  named  in  the  indictment  has  been 
convicted.  I  Russell  on  Crimes,  38;  Bishop's  Crim.  Law,  §  611; 
Commonwealth  v.  Knapp,  10  Pick.  477. 

But  it  is  well  settled  that  in  such  a  case  the  accessory  must  be 
tried  and  convicted  as  accessory  to  the  convicted  principal  only,  in  the 
same  manner  as  though  the  convicted  principal  only  was  named  in  the 
indictment.  The  authorities  are  uniform  on  this  subject,  and  I  have 
been  unable  to  find  any  decision  against  this  position.  Strops  v.  Cora., 
7  Serg.  &  R.  491 ;  3  Greenl.  Ev.  §  52  ;  People  v.  Bacon,  1  Park.  246 ; 
1  Bishop's  Crim.  Law,  468. 

This  necessarily  results  from  the  rule  that  the  guilt  of  the  principal 
can  only  be  shown  by  a  judicial  trial  and  conviction,  and  even  then 
it  is  not  conclusive  against  the  accessory.  10  Pick.  siq)ra.  The  as- 
sociation of  unconvicted  principals  with  a  convicted  principal  in  the 
indictment  does  not  authorize  the  trial  of  an  accessory  to  any  but  the 
one  convicted,  any  more  than  it  would  if  those  not  convicted  had  not 
been  named.  The  decision  of  the  court,  therefore,  overruling  the 
objection  of  the  prisoner  to  being  tried  as  accessory  to  an}-  but  the 
convicted  principal,  was  clearly  erroneous. 

Mass.  Pub.  Stats,  ch.  210,  Sects.  4.  7.  Whoever  counsels,  hires,  or 
otherwise  procures  a  felony  to  be  committed,  may  be  indicted  and  con- 
victed as  an  accessory  before  the  fact,  either  with  the  principal  felon  or 
after  his  conviction  ;  or  may  be  indicted  and  convicted  of  a  substantive 
felony,  whether  the  principal  felon  has  or  has  not  been  convicted,  or  is 
or  is  not  amenable  to  justice. 

Whoever  becomes  an  accessory  to  a  felony  after  the  fact  may  be 
indicted,  convicted,  and  punished,  whether  the  principal  felon  has  or 
has  not  been  previously  convicted,  or  is  or  is  not  amenable  to  justice. 

Penal  Code  of  New  York,  §§  29,  32.  A  person  concerned  in  the 
commission  of  a  crime,  whether  he  directly  commits  the  act  constituting 


392  RULOFF   V.   PEOPLE.  [CHAJ.  X. 

the  offence,  or  aids  and  abets  iu  its  commissiou,  and  wlietlier  present 
or  absent ;  and  a  person  vvlio  directly  or  indirectly  counsels,  commands, 
induces,  or  procures  another  to  commit  a  crime,  is  a  principal. 

An  accessory  to  a  felony  may  be  indicted,  tried,  and  convicted,  .  .  . 
whether  the  principal  felon  has  or  has  not  been  previously  convicted, 
or  is  or  is  not  amenable  to  justice,  and  although  the  principal  has  been 
pardoned  or  otherwise  discharged  after  conviction. 


SECTION   VI. 

Acts  done  in  pursuance  of  a  common  design. 

ASHTON'S   CASE. 
King's  Bench.     1698. 

{Reported  12  Modern,  256.] 

Holt,  C.  J.  Two,  three,  or  more  are  doing  an  unlawful  act,  as 
abusing  the  passers-by  in  a  street  or  highway,  if  one  of  them  kill  a 
passer-by,  it  is  murder  in  all ;  and  whatever  mischief  one  does,  they 
are  all  guilty  of  it ;  and  it  is  lawful  for  any  person  to  attack  and  suppress 
them,  and  command  the  king's  peace ;  and  such  attempt  to  suppress 
is  not  a  sufficient  provocation  to  make  killing  manslaughter,  or  son 
assault  demestie  a  good  plea  in  trespass  against  them.* 


RULOFF   V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1871. 

[Reported  45  New  York,  213.] 

Allen,  J.^  The  jury  have,  by  their  verdict,  found  that  the  homicide 
was  committed  either  by  the  accused  in  person  or  by  some  one  acting 
in  concert  with  him  in  the  commission  of  a  felony,  and  in  the  prosecu- 
tion and  furtherance  of  a  common  purpose  and  design. 

It  must  be  assumed,  from  the  finding  of  the  jury,  that  the  prisoner 
was  one  of  the  three  persons  who  burglariously  entered  the  store  on  the 
night  of  the  homicide ;  that  Merrick  was  killed  by  one  of  the  burglars, 
in  pursuance  of  the  common  intent  of  all ;  and  that  the  accused  either 
fired  the  shot  which  caused  the  death,  or  was  present,  aiding  and  abet- 
ting his  confederates  in  the  commission  of  the  act.  The  presumption 
from  the  evidence,  assuming  that  the  witnesses  and  their  statements 

1  See  Reg.  v.  Jackson,  7  Cox  C.  C.  357  ;  Reg.  v,  Salmon,  14  Cox  C.  C.  494. 
supra.  —  Ed. 

2  Part  of  tlie  opinion  only  is  given. 


SECT.  VI.]  RULOFF   V.   PEOPLE.  393 

are  credible,  as  the  jury  seem  to  have  believed,  is,  that  the  accused, 
in  person,  committed  the  homicide ;  and  it  is  not  improbable  that,  had 
the  jury  been  left  to  pronounce  upon  his  guilt  or  innocence  upon  that 
theory  alone,  without  the  complications  resulting  from  the  submission 
of  the  questions  touching  his  responsibility  for  the  acts  of  any  other 
by  whom  the  deed  might  have  been  perpetrated,  the  result  would  have 
been  the  same.  There  were  but  three  persons,  other  than  the  deceased 
and  his  fellow-clerk,  present.  One  of  these  was  disabled  and  lying 
upon  the  floor  seriously  wounded,  and  the  other  was  in  the  grasp  of 
Merrick,  the  deceased,  and  was  also  wounded  and  injured.  The  third 
came  up  the  stairs  and  fired  the  pistol  which  caused  the  death,  and  he 
alone  of  the  three  was  uninjured  and  unwounded.  The  accused,  when 
arrested  a  day  or  two  after  the  occurrence,  bore  no  mark  of  injury  upon 
his  person,  and  could  not  have  been  one  of  the  two  so  badly  injured 
in  the  encounter  with  the  clerks.  It  follows  that  he  was  either  not 
present,  and  has,  therefore,  been  wrongfully  convicted,  or  his  hand  dis- 
charged the  pistol  which  caused  the  death  of  Merrick.  But  the  jur}' 
may  have  taken  other  views  of  the  evidence  under  the  charge,  so  that 
the  questions  made  upon  the  trial  and  presented  by  the  writ  of  error, 
upon  the  rules  governing  the  liability  of  one  to  answer  criminally  for 
the  acts  of  others,  cannot  be  passed  by  without  consideration. 

If  the  homicide  was  committed  by  one  of  several  persons,  in  the 

prosecution  of  an  unlawful  purpose  or  common  design,  in  which  the 

combining  parties  had  united,  and  for  the  effecting  whereof  they  had 

assembled,  all  were  liable  to  answer  criminally  for  the  act,  and,  if  the 

homicide  was  murder,  all  were  guilty  of  murder,  assuming  that  it  was 

within  the  common  purpose.     All  present  at  the  time  of  committing 

\  an  offence  are  principals,  although  only  one  acts,  if  they  are  confeder- 

l  ates,  and  engaged  in  a  common  design,  of  which  the  offence  is  a  part. 

|l  Russ.  on  Crimes,  27,  29.     The  several  persons  concerned  in   this 

offence  were   assembled  for   the  commission  of  a  felony,   and   were 

engaged  in  the  actual  perpetration  of  the  offence ;   and  the  homicide 

was  committed  upon  one  who  was  opposing  them  in  the  act,  and  in 

rescuing  and  aiding  the  confederates  to  escape.     To  this  conclusion  the 

jury  must  have  come. 

If  there  was  a  general  resolution  against  all  opposers,  and  to  resist 
to  the  utmost  all  attempts  to  detain  or  hold  in  custody  any  of  the 
parties,  all  the  persons  present  when  the  homicide  was  committed  were 
equally  guilty  with  him  who  fired  the  fatal  shot.  1  Russ.  on  Crimes, 
29,  30.  This  general  resolution  of  the  confederates  need  not  be  proved 
by  direct  evidence.  It  may  be  inferred  from  circumstances ;  by  the 
number,  aims,  and  behavior  of  the  parties  at  or  before  the  scene  of 
action.  Id. ;  Fost.  353,  354  ;  2  Hawk.  P.  C.  ch.  29,  s.  8  ;  Tyler's  Case, 
8  C.  &  P.,  616.  There  was  enough  in  this  case  to  authorize  the  sub- 
mission of  the  question  to  the  jury.  An  express  resolution  against  all 
opposers  can  very  seldom  be  proved  by  direct  evidence  -,  but  here  every 
circumstance  tended  strongly  to  prove  it. 


394  STATE   V.    ALLEN.  [CHAP    X. 

Some  of  the  confederates,  and  perhaps  all,  were  armed  ;  they  actually 
did  resist  all  opposition  with  such  weapons  as  they  could  successfully 
use.  When  one  was  detained,  being  overcome  by  the  opposition,  the 
others  returned  at  the  call  of  their  comrade,  and  the  only  one  in 
condition  to  do  so,  deliberately  shot  Merrick,  who  was  preventing  the 
escape  of  one  of  the  confederates,  and  was  cautioned  by  that  confeder- 
ate, when  about  to  shoot,  not  to  shoot  him.  The  jury  were  authorized 
to  infer  that  this  act  was  within  the  general  purpose  of  the  confederates. 
They  may  have  desisted  from  their  larcenous  attempts,  and  yet  the  full 
purpose  of  the  combination  not  have  been  carried  out  so  long  as  one  of 
the  party  was  detained  and  held  a  prisoner.^ 


STATE  V.  ALLEN. 
SuPREsiE  Court  of  Errors  of  Connecticut.     1879. 

[Reported  47  Connecticut,  121  ] 

Beardslet,  J.'^  The  court  charged  the  jury  as  follows:  "If  the 
jury  shall  find  that  Hamlin  and  Allen,  at  some  time  previous  to  the 
homicide,  made  up  their  minds  in  concert  to  break  the  State  prison 
and  escape  therefrom  at  all  hazard,  and  knowing  that  the  enterprise 
would  be  a  dangerous  one  and  expose  them  to  be  killed  by  the  armed 
night-watchman  of  the  prison  should  they  be  discovered  in  making  the 
attempt,  wilfully,  deliberately,  and  premeditatedly  determined  to  arm 
themselves  with  deadly  weapons,  and  kill  whatever  watchman  should 
oppose  them  in  their  attempt;  and  if  the  jury  should  further  find  that 
in  pursuance  of  such  design  they  armed  themselves  with  loaded  revol- 
vers to  carry  their  original  purpose  into  execution,  and  while  engaged 
in  efforts  to  escape  from  the  prison  were  discovered  by  the  watchman 
Shipman  (the  deceased),  and  in  the  scuffle  which  ensued  he  was  wilfully 
killed  by  Hamlin  or  Allen  while  they  were  acting  in  concert  and  in 
pursuance  of  their  original  purpose  so  to  do  in  just  such  an  emergency 
as  they  now  found  themselves  in,  —  then  Hamlin  and  Allen  are  both 
guilty  of  murder  in  the  first  degree.  And  in  the  opinion  of  the  court 
Allen  would  be  guilty  of  murder  in  the  first  degree  if,  in  the  state  of 
things  just  described,  he  in  fact  abandoned,  just  before  the  fatal  shot 
was  fired  by  Hamlin,  all  further  attempt  to  escape  from  the  prison,  and 
the  infliction  of  further  violence  upon  the  person  of  Shipman,  without 
informing  Hamlin  by  word  or  deed  that  he  had  so  done,  and  Hamlin, 
ignorant  of  the  fact,  shortly  after  fired  the  fatal  shot,  in  pursuance  of 
and  in  accordance  with  the  purpose  of  the  parties  down  to  the  time  of 
the  abandonment." 

J  Jcc.  State  V.  Barrett,  40  Minn.  77  ;  State  v.  Davis,  87  N.  C.  514  ;  State  v. 
Johnson,  7  Or.  210.  —  Ed. 

•  Part  of  the  opinion  only  is  given. 


SECT.  VI.]  STATE   V.    ALLEN.  395 

We  do  not  think  that  the  objection  made  by  the  defence  to  this  part 
of  the  charge  is  well  founded.  Under  such  circumstances  Allen's  so- 
called  abandonment  would  be  l)ut  an  operation  of  the  mind,  —  a  secret 
change  of  purpose.  Doing  nothing  b}  word  or  deed  to  inform  his  co- 
conspirator of  such  change  of  purpose,  the  reasonable  inference  would 
be  that  he  did  not  intend  to  inform  him  of  U,  and  thus  he  would  be 
intentionally  encouraging  and  stimulating  him  to  the  commission  of  the 
homicide  by  his  supposed  co-operation  with  him.  Such  intent  not  to 
inform  Hamlin  of  his  change  of  purpose  would,  under  the  circumstances, 
be  decisive  of  his  guilt. 

But  the  charge  proceeds:  "In  other  words,  if  during  the  fatal  en- 
counter with  deadly  weapons,  in  the  state  of  things  just  described, 
Allen  suddenly  al)andoned  Hamlin,  abandoned  the  enterprise  and  went 
to  his  cell,  without  saying  a  word  to  Hamlin  to  the  effect  that  he  had 
abandoned  the  enterprise,  and  Hamlin,  supposing  that  he  was  still 
acting  with  him  and  that  he  had  gone  to  his  cell  for  an  instrument  to 
carry  on  the  encounter,  fired  the  fatal  shot,  his  abandonment  under 
such  circumstances  would  be  of  no  importance.  A  man  cannot  abandon 
another  under  such  circumstances  and  escape  the  consequences  of  the 
aid  he  has  rendered  up  to  the  time  of  the  abandonment." 

A  majority  of  the  court  think  thai  the  jury  may  have  been  misled  by 
this  part  of  the  charge,  and  that  therefore,  especially  in  view  of  the 
grave  issues  involved  in  the  case,  a  new  trial  should  be  granted. 

If  Allen  did  in  fact  before  the  homicide  withdraw  from  the  conspir- 
acy, abandon  the  attempt  to  escape,  and  with  the  knowledge  of  Hamlin 
leave  and  go  to  his  cell,  Hamlin's  misconstruction  of  his  purpose  in 
leaving  did  not  necessarily  make  his  conduct  of  no  importance. 

Until  the  fatal  shot  there  was  the  Iocks  penitentiCB.  To  avail  himself 
of  it  Allen  must  indeed  have  informed  Hamlin  of  his  change  of  pur- 
pose, but  such  information  might  be  by  words  or  acts ;  and  if  with  the 
intention  of  notifying  Hamlin  of  his  withdrawal  from  the  conspiracy  he 
did  acts  which  should  have  been  effectual  for  that  purpose,  but  which 
did  not  produce  upon  the  mind  of  Hamlin  the  effect  which  he  iniended, 
and  which  they  naturally  should  have  produced,  such  acts  were  proper 
for  the  jury  to  consider  in  determining  the  relation  of  Allen  to  the  crime 
which  was  afterwards  committed. 

Allen's  act  of  leaving  and  going  to  his  cell,  if  he  did  so,  had  some 
significance  in  connection  with  the  question  of  intention  and  notice, 
and  was  therefore  proper  for  the  consideration  of  the  jury.  How  much 
weight  was  to  be  given  to  it  would  depend  upon  circumstances,  such 
as  the  situation  of  the  parties  and  the  opportunity  for  verbal  or  other 
notice. 

A  new  trial  Is  advised. 


396  STATE    V.    LLXAS.  •        [CH.U^    X. 


STATE   V.    LUCAS. 
Supreme  Court  of  Iowa.     1880 

[Reported  55  loiva,  321.) 

Daf,  J.  — R.  G.  Edwards,  on  behalf  of  the  State,  testified  in  sub- 
stance that  he  was  night  watchman  for  Hemming  way  &  Barclay's  mill, 
at  Lansing;  that  on  the  night  of  August  24,  1879,  the  defendant  and 
Wood  assaulted  and  knocked  him  down,  tied  his  hands  and  feet  and 
carried  him  into  the  mill,  and  that  while  the  defendant  went  after  a 
sledge  to  open  the  safe  in  the  mill,  Wood  took  three  dollars  in  silver 
from  his  pocket  The  evidence  shows  that  the  safe  was  blown  open 
on  the  same  night.  The  defendant,  on  his  own  behalf,  testified  that 
he  had  nothing  to  do  with  robbing  Edwards,  and  was  not  at  the  mill 
at  all ;  that  he  rowed  Wood  and  Harris  in  a  skiff,  from  La  Crosse  to 
Lansing,  and  landed  near  the  mill  about  nine  o'clock  on  the  night  of 
the  robbery ;  that  Wood  and  Harris  went  up  town  and  left  him  to 
watch  the  boat;  that  afterward  they  came  down  to  the  boat  in  a  hurry 
and  directed  him  to  row  over  to  Wisconsin  ;  that  on  the  way  he  saw 
them  dividing  some  silver  money ;  that  when  they  reached  the  Wis- 
consin shore  they  sunk  the  boat ;  that  on  the  way  to  La  Crosse  Wood 
told  him  all  that  happened,  and  gave  him  two  revolvers  to  carry. 

The  court  instructed  the  jury  as  follows ;  "  If  you  believe  from  all 
the  evidence  that  the  defendant  did  not  leave  the  boat  after  the  arrival 
at  Lansing;  yet  if  yon  also  beheve  that  he  had  knowledge  of  the  intent 
of  his  associates  to  commit  crime,  either  of  robbery  of  the  man 
Edwards,  or  of  robbing  the  safe  in  Barclay  and  Hemmingway's  mill, 
or  any  other  crime,  and  rowed  them  ashore  for  such  purpose,  and 
waited  in  the  boat  for  them  during  their  absence  in  committing  the 
crime,  then  you  will  find  the  defendant  guilty." 

The  doctrine  of  this  instruction  is  that  if  the  defendant  knew  of  the 
intent  of  his  associates  to  rob  the  safe  in  Barclay  &  Hemmingway's 
mill,  and  rowed  them  ashore  for  that  purpose  and  awaited  their  return 
he  is  guilty  of  the  robbery  of  Edwards.  This  doctrine  is  not  correct. 
It  is  true  the  accessory  is  liable  for  all  that  ensues  upon  the  execution 
of  the  unlawful  act  contemplated;  as,  if  A  commanded  B  to  beat  C, 
and  he  beats  him  so  that  he  dies,  A  is  accessory  to  the  murder.  So  If 
A  commanded  B  to  burn  the  house  of  C,  and  in  domg  so  the  house  of 
D  is  also  burnt,  A  is  accessory  to  the  burning  of  D's  house.  So,  in 
this  case,  if  Lucas  had  knowledge  of  the  intention  to  rob  the  safe,  and 
aided  and  abetted  his  associates  in  the  commission  of  that  offence,  and 
if,  in  furthering  that  purpose,  a  fatal  assault  bad  been  made  upon 
Edwards,  the  defendant  would  have  been  accessory  to  the  murder. 

But.  if  the  accessory  order  or  advise  one  crime,  and  the  principal 
intentionally  commit  another;  as,  for  instance,  to  burn  a  house,  and 
instead  of  that  he  commit  a  larceny  ;  or,  to  commit  a  crime  against  A, 


SECT.  VI.]  STATE  V.    LUCAS.  397 

and  instead  of  so  doing  lie  intentionally  commit  the  same  crime  against 
B,  the  accessory  will  not  be  answerable.  See  1  Wharton's  Criminal 
Law,  section  134,  and  autliorities  cited.  It  follows  that  the  defendant 
cannot  be  convicted  of  a  robbery  of  Edwards,  from  the  mere  fact  that 
he  abetted  his  associates  in  the  robbery  of  JJarclay  &  Iiemmingway"s 
safe.  If  the  intention  of  Lucas  was  to  abet,  and  share  in  the  proceeds 
of,  any  robbery  that  his  associates  might  commit,  a  different  rnle 
would  apply.  But  this  is  not  the  thought  of  the  instruction  under 
con.sideration.  Our  view  of  the  law  governing  this  case  is  sufliciently 
indicated  by  the  foregoing,  without  noticing  consecutively  the  other 
errors  assigned  and  argued. 

Heversed.^ 

1  See  Lamb  v.  People,  96  111.  73  ;  People  v.  Knapp,  26  Mich.  112  ;  Mercersmith  v.  ■■ 
State,  8  Tex.  App.  211;  Watts  v.  State,  5  W.  Va.  532.  —  Ed. 


398  UNITED   STATES   V.  DAVIS.  [CHAP.  XL 


CHAPTER  XL 

JURISDICTION   OVER  OFFENCES. 


SECTION   I. 

Locality/  of  Offences. 

UNITED   STATES  v.  DAVIS. 

U.  S.  Circuit  Court,  District  of  Massachusetts.    1837. 

[Reported  2  Sumner,  482.] 

Indictment  for  manslaughter.  It  appeared  that  the  defendant, 
master  of  an  American  whale  ship,  shot  and  killed  a  man  on  the  deck 
of  another  vessel  which  lay  alongside ;  both  vessels  lay  at  the  time  in 
a  harbor  of  one  of  the  Society  Islands.' 

Story,  J.  We  are  of  opinion  that,  under  the  circumstances  estab- 
lished in  evidence,  there  is  no  jurisdiction  in  this  cause. 

What  we  found  ourselves  upon  in  this  case  is,  that  the  offence,  if 
any,  was  committed,  not  on  board  of  the  American  ship  "  Rose,"  but 
on  board  of  a  foreign  schooner  belonging  to  inhabitants  of  the  So- 
ciety Islands,  and,  of  course,  under  the  territorial  government  of  the 
king  of  the  Society  Islands,  with  which  kingdom  we  have  trade  and 
friendly  intercourse,  and  which  our  government  may  be  presumed 
(since  we  have  a  consul  there)  to  recognize  as  entitled  to  the  rights  and 
sovereignty  of  an  independent  nation,  and  of  course  entitled  to  try 
offences  committed  within  its  territorial  jurisdiction.  I  say  the  offence 
was  committed  on  board  of  the  schooner ;  for  although  the  gun  was 
fired  from  the  ship  "  Rose,"  the  shot  took  effect  and  the  death  hap- 
pened on  board  of  the  schooner ;  and  the  act  was,  in  contemplation  of 
law,  done  where  the  shot  took  effect.  So  the  law  was  settled  in  the 
case  of  Rex  v.  Coombs,  1  Leach  Cr.  Cas.  432,  where  a  person  on  the  high 
seas  was  killed  l)y  a  shot  fired  by  a  person  on  shore,  and  the  offence 
was  held  to  be  committed  on  the  high  seas,  and  to  be  within  the  Admi- 
ralty jurisdiction.  Of  offences  committed  on  the  high  seas  on  board  of 
foreign  vessels  (not  being  a  piratical  vessel),  but  belonging  to  persons 
under  the  acknowledged  government  of  a  foreign  country,  this  court 
has  no  jurisdiction  under  tlie  Act  of  1790,  ch.  36,  §  12.     That  was  the 

1  This  short  statement  of  facts  has  been  substituted  for  that  contained  in  the 
report. 


SECT.  1.]  STATE   V.    WYCKOFF.  399 

doctrine  of  the  Supreme  Court  iu  United  States  v.  Palmer,  3  Wheat.  R. 
610,  aud  Uuited  States  v.  Kliutock,  5  Wheat.  R.  144,  and  United 
States  V.  Holmes,  5  Wlieat.  R.  412  ;  applied,  it  is  true,  to  another  class 
of  cases,  but  in  its  scoi)e  embracing  the  present.  We  lay  no  stress  on 
the  fact  that  the  deceased  was  a  foreigner.  Our  judgment  would  be 
tlie  same  if  he  had  been  an  American  citizen.  We  decide  the  case 
wliolly  on  the  ground  that  the  schooner  was  a  foreign  vessel  belonging 
to  foreigners,  and  at  the  time  under  the  acknowledged  jurisdiction  of 
a  foreign  goverun)ent.  We  think  that  under  such  circumstances  the 
jurisdiction  over  the  offence  belonged  to  the  foreign  government,  aud 
not  to  the  courts  of  the  United  States  under  the  Act  of  Congress. 
The  jury  immeduitely  returned  a  verdict  of  not  guilty.^ 


STATE  V.  WYCKOFF. 
Supreme  Court  of  New  Jersey.    1864. 

[Reported  2  Vroom,  65.] 

Beasley,  C.  J.  The  defendant  was  convicted  before  the  Court  of 
Oyer  and  Terminer,  on  an  indictment  containing  two  counts,  the  first 
of  which  charges  him  with  the  larceny  of  certain  goods  of  a  value  ex- 
ceeding twenty  dollars,  and  the  other  with  receiving  goods  knowing 
them  to  be  stolen. 

It  appeared  that  the  defendant  was  in  New  York  at  the  time  of  the 
theft,  aud  while  in  that  state  he  made  an  arrangement  with  one  Kelly 
to  come  into  this  state  and  steal  the  articles  in  question  and  to  bring 
and  deliver  them  to  him  in  New  York.  This  arrangement  was  carried 
into  effect,  —  the  articles  being  stolen  by  Kelly  and  delivered  to  the 
defendant  in  New  York.  The  defendant  was  not  in  this  state  at  any 
time,  from  the  inception  to  the  conclusion  of  the  transaction.  The 
Court  of  Oyer  and  Terminer  have  asked  the  advisory  opinion  of  this 
court  upon  two  points  :  — 

First.  Whether  proof  of  the  above  stated  facts  will  support  the 
indictment. 

Second.  Has  the  defendant  committed  any  offence  indictable  by  the 
laws  of  this  state  ? 

In  regard  to  the  first  point,  the  circumstances  proved  on  the  trial 
established  the  fact  that  Kelly  was  guilty  of  the  crime  of  grand  larceny 
in  this  state.  Kelly  therefore  committed  a  felony,  and  consequently, 
as  the  defendant  was  not  present,  either  actually  or  constructively,  at 
the  commission  of  the  offence,  he  could  not  be  a  principal  therein,  but 
was  an  accessory  before  the  fact.     Kelly  did  the  act,  and  the  defend- 

1  Ace,  Rex  V.  Coombes,  Leach  (4th  ed.)  388  ;  State  v.  Lake  (R.  I.)  17  AtL  552. 
—  Ed. 


400  STATE   V.   WYCKOFF.  [CHAP.  XI. 

ant's  will  contributed  to  it ;  but  it  was  committed  while  he  was  too  far 
from  the  act  to  constitute  him  a  principal.  The  distinction  in  felonies 
between  the  principal  and  accessories  before  and  after  the  fact  is  cer- 
tainly technical,  and  has  been  sometimes  regarded  as  untenable  ;  but 
it  is  too  firmly  established  to  be  exploded  by  judicial  authority.  It 
has  alwa3-s  been  regarded,  in  its  essential  features,  as  a  part  of  the 
criminal  law  of  this  state,  and  its  existence  is  recognized  both  in  our 
statutes  and  in  a  number  of  the  reported  decisions.  State  v.  Cooper, 
1  Green,  373  ;  Johnson  v.  State,  2  Dutcher,  324  ;  Cook  v.  State,  4 
Zab.  845. 

The  first  count,  therefore,  charging  the  defendant  as  a  principal  in 
the  larceny,  is  not  sustained  by  the  evidence.  The  crime  of  the  acces- 
sory, being  dissimilar  from  that  of  the  principal  in  its  fundamental 
characteristics,  must  be  distinctly  charged  in  the  pleadings.  It  has 
never  been  supposed  that  a  count  containing  a  statement  of  facts 
evincive  of  the  fault  of  the  party  accused  as  a  principal  in  a  felony, 
was  sufficient  to  warrant  the  conviction  of  such  party  as  an  accessory. 
1  Chit.  Crim.  Law,  271,  2  id.  4  ;  Wharton's  Free,  of  Indict.  97 ;  State 
V.  Seran,  4  Dutcher,  519.  In  the  case  of  Rex  v.  Plant,  7  C.  &  P.  575, 
it  was  expressly  held  that  one  indicted  as  principal  in  a  felony  could 
not  be  convicted  of  being  an  accessory  before  the  fact.  See  also 
Whart.  C.  L.  115. 

Neither  will  the  second  count  of  the  indictment  sustain  the  convic- 
tion. The  evidence  shows  that  the  stolen  goods  were  received  by  the 
defendant,  with  guilty  knowledge,  in  the  state  of  New  York.  But 
this  was  no  offence  against  the  laws  of  this  State.  The  defendant 
therefore  cannot  be  legally  sentenced  upon  the  conviction  founded  on 
the  present  indictment. 

The  remaining  question  is,  has  the  defendant  committed  any  offence 
indictable  by  the  laws  of  this  State  ? 

His  act  was  to  incite  and  procure  his  agent  or  accomplice  to  enter 
this  state  and  commit  the  felony.  If  the  defendant  had  been  in  this 
state  at  the  time  of  such  procurement  and  incitement,  he  would  have 
been  guilty  as  an  accessory  before  the  fact ;  but  what  he  did  was  done 
out  of  the  state.  Did  he  thereby  become  amenable  to  our  criminal 
jurisdiction? 

As  the  defendant  did  not  act  within  this  state  in  his  own  person,  the 
point  to  be  decided  is,  did  he  do  such  act  in  this  state  by  construction 
or  in  contemplation  of  law  ? 

It  is  undoubtedly  true  that  personal  presence  within  the  jurisdiction 
in  which  the  crime  is  committed,  is  not  in  all  cases  requisite  to  confer 
cognizance  over  the  person  of  the  offender,  in  the  tribunals  of  the  gov- 
ernment whose  laws  are  violated.  In  some  cases  the  maxim  applies, 
Crimen  trahit  personam.  Thus,  where  a  person  being  within  one 
jurisdiction,  maliciously  fires  a  shot  which  kills  a  man  in  another  juris- 
diction, it  is  murder  in  the  latter  jurisdiction,  the  illegal  act  being  there 
consummated.    So,  in  the  case  of  The  United  States  v.  Davis,  4  Sumner, 


SECT.  I.]  STATE   V.    WYCKOFF.  401 

48.5,  the  defendant  was  accused  of  shooting  from  an  American  ship 
and  killing  a  man  on  board  a  foreign  schooner.  Chief  Justice  Story 
said:  "The  act  was,  in  conteini)lation  of  law,  done  where  the  shot 
took  effect.  He  would  be  liable  to  be  punished  by  the  foreign  govern- 
ment." The  same  principle  was  recognized  by  this  court  in  the  case 
of  The  State  v.  Carter,  3  Dutcher,  4'jy.  So,  when  a  crime  is  com- 
mitted by  an  innocent  living  agent,  the  projector  of  such  crime  being 
absent  from  the  country  whose  laws  are  infringed.  Such  was  the  case 
of  The  People  v.  Adams,  3  Denio,  190.  In  this  latter  case  the  facts 
were  these :  The  defendant  was  indicted  in  the  city  of  New  York  for 
obtaining  money  from  a  firm  of  commission  merchants  in  that  city  by 
the  exhibition  of  fictitious  receipts.  The  defendant  pleaded  that  he 
had  never  been  in  the  State  of  New  York  ;  that  the  receipts  were 
drawn  and  signed  in  Ohio,  and  that  the  offence  was  committed  by 
their  being  presented  to  the  firm  in  New  York  by  innocent  agents  em- 
ployed by  the  defendant  in  Ohio.  It  was  held  that  such  plea  was  bad 
and  disclosed  no  defence.  A  number  of  authorities  maintaining  the 
same  view  will  be  found  collected  in  the  opinion  of  the  judge  who 
delivered  the  decision  of  the  court  in  the  case  last  cited. 

The  rule,  therefore,  appears  to  be  firmly  established,  and  upon  very 
satisfactory  grounds,  that  where  the  crime  is  committed  by  a  person 
absent  from  the  country  in  which  the  act  is  done,  through  the  means 
of  a  merely  material  agency  or  by  a  sentient  agent  who  is  innocent,  in 
such  cases  the  offender  is  punishable  where  the  act  is  done.  The  law 
implies  a  constructive  presence  from  the  necessity  of  the  case ; 
otherwise  the  anomaly  would  exist  of  a  crime,  but  no  responsible 
criminal. 

But  the  more  difficult  question  remains  to  be  considered,  which  is, 
—  in  case  of  a  felony  committed  here  by  a  responsible  agent,  who  is 
therefore  the  principal  felon,  and  punishable  by  our  laws,  —  can  the 
procurer,  who  is  an  accessory  before  the  fact,  and  whose  acts  of  pro- 
curement have  been  done  in  a  foreign  jurisdiction,  be  indicted  and 
punished  for  such  procurement  in  this   state? 

The  general  rule  of  the  law  has  always  been  that  a  crime  is  to  be  tried 
in  the  place  in  which  the  criminal  act  has  been  committed.  It  is  not 
sufficient  that  part  of  such  act  shall  have  been  done  in  such  place,  but 
it  is  the  completed  act  alone  which  gives  jurisdiction.  So  far  has  this 
strictness  been  pushed  that  it  has  been  uniformly  held  that  if  a  felony 
was  committed  in  one  county,  the  accessory  having  incited  the  prin- 
cipal in  another  county,  such  accessory  could  not  be  indicted  in  either. 
This  technicality,  which,  when  applied  to  the  several  counties  of  the 
same  kingdom  or  state,  appears  to  have  little  to  recommend  it,  was 
nevertheless  so  firmly  established  that  it  required  the  statute  of  2  and 
3  Ed.  VI.  c.  24,1  ^  abolish  it,  and  this  statute  has  been  re-enacted  in 

1  "  Where  any  murder  or  felony  hereafter  shall  be  committed  and  done  in  one 
county,  and  another  person  or  mo  shall  be  accessory  or  accessories  in  any  manner  of 
wise  to  any  siich  murder  or  felony  in  any  other  county,  that  then  an  iudictmeut  found 

26 


402  STATE   V.    WYCKOFF.  [CilAP.  XI. 

this  State.  Nix.  Dig.  199  (Rev.  p.  282,  §  78).  And  so  in  like  manner 
tlie  same  rigor  existed  in  cases  in  which  death  ensued  out  of  the  king- 
dom from  u  felonious  stroke  inflicted  within  it,  it  being  decided  that 
neither  the  principal  nor  accessory  was,  under  such  circumstances,  in- 
dictable. This  imperfection  in  the  criminal  system  was  removed  by 
the  statute  of  2  Geo.  II.  c.  21,  and  which  has  been  substantially  copied 
in  the  third  section  of  the  act  of  this  State  before  referred  to  in  Nix. 
Dig.  200  (Rev.  p.  282,  §  78).  For  the  rules  of  law  which  were  thus 
modified  by  statute,  see  3  lust.  48  ;  Lacye's  Case,  1  Leo.  270  ;  2  Rep.  93. 

If,  then,  the  accessory  by  the  common  law  was  answerable  only  in 
the  county  in  which  he  enticed  the  principal,  and  that,  too,  when  the 
criminal  act  was  consummated  in  the  same  county,  it  would  seem  to 
follow  necessarily,  in  the  absence  of  all  statutory  provision,  that  he  is 
wholly  dispunishable  when  the  enticement  to  the  commission  of  the 
offence  has  taken  place  out  of  the  state  in  which  the  felony  has  been 
perpetrated.  Under  such  a  condition  of  affairs  it  is  not  easy  to  see 
how  the  accessory  has  brought  himself  within  the  reach  of  the  laws  of 
the  off"ended  state.  His  offence  consists  in  the  enticement  to  commit 
the  crime  ;  and  that  enticement,  and  all  parts  of  it,  took  place  in  a 
foreign  jurisdiction.  As  the  instrumentality  employed  was  a  conscious 
guilty  agent,  with  free  will  to  act  or  to  refrain  from  acting,  there  is  no 
room  for  the  doctrine  of  a  consti-uctive  presence  in  the  procurer.  Ap- 
plying to  the  facts  of  this  case  the  general  and  recognized  principles 
of  law,  it  would  seem  to  be  clear  that  the  offence  of  which  the  defend- 
ant has  been  guilty  is  not  such  as  the  laws  of  this  state  can  take  cog- 
nizance of.  We  must  be  satisfied  to  redress  the  wrong  which  has  been 
done  to  one  of  our  citizens,  and  to  vindicate  the  dignity  of  our  laws 
by  the  punishment  of  the  wrong-doer  who  came  within  our  territorial 
limits.  As  for  the  defendant,  who  has  never  been,  either  in  fact  or  by 
legal  intendment,  within  our  jurisdiction,  he  can  be  only  punished  by 
the  authority  of  the  State  of  New  York,  to  whose  sovereignty  alone  he 
was  subject  at  the  time  he  perpetrated  tlie  crime  in  question. 

The  principal  involved  in  this  case  has  not  often  been  the  subject  of 
judicial  consideration,  nor  has  it  received  much  attention  from  the  text- 
writers.  But  in  the  few  cases  to  be  found  in  the  reports  upon  the 
point  a  view  similar  to  the  above  has  been  expressed.  The  case  of  The 
State  V  Moore,  6  Foster,  448,  was,  in  all  its  features,  identical  with 
that  now  before  this  court,  and  the  result  was  a  discharge  of  the  pris- 
oner, on  the  ground  that  the  crime  of  the  accessory  had  not  been 
committed  within  the  jurisdiction  of  New  Hampshire. 

The  case  jEx  parte  Smith,  6  Law  Reporter,  57,  was  to  the  same 

or  taken  again.st  such  accessory  and  accessories  upon  the  circumstance  of  such  matter 
before  the  justices  of  the  peace,  or  other  justices  or  commissioners  to  en(|uire  of  felonies 
iu  tlie  county  where  such  offences  of  accessory  or  accessories  in  any  manner  of  wise  shall 
be  committed  or  done,  shall  be  as  good  and  effectual  in  the  law  as  if  the  said  principal 
offence  had  been  committed  or  done  within  the  .same  county  where  the  same  indictment 
!ig.ainst  such  accessory  shall  be  found."     2  &  3  Ed.  6,  c.  2i,  §  4.  —  Ed. 


SECT.  I.]  STATt;   V.   GES6EKT.  403 

effect.  The  same  priuciple  was  agaiu  cousidered,  though  in  a  some- 
what different  aspect,  in  the  case  of  The  State  i\  Knight,  1  Taylors 
Kep.  (N.  C.)  05,  and  the  opinion  intimated  by  the  court  entirely  ac- 
corded with  those  expressed  in  the  two  cases  first  above  cited.  These 
are  the  only  judicial  examinations  of  the  matter  now  in  hand  which  I 
have  met  with  in  the  course  of  my  research. 

Upon  authority,  then,  as  well  as  upon  principle,  I  think  the  present 
indictment  cannot  be  sustained,  and  that  the  defendant  has  not  com- 
mitted any  offence  which  is  indictable  by  force  of  tlie  laws  of  thib 
State. 

Let  the  Court  of  Oyer  and  Terminer  be  advised  accordingly.' 


STATE  V.  GESSERT. 
Supreme  Coukt  of  Minnesota.     1875. 

[Reported  21  Minne sola,  3&9.] 

Berry,  J.  The  indictment  in  this  case  was  found  by  a  grand  jury 
of  Washington  County,  and  charges  the  defendant  with  committing  the 
crime  of  murder,  by  feloniously,  &c.,  inflicting  upon  David  Savazyo, 
on  Aug.  28,  1874,  in  said  county,  a  stab  and  wound,  of  which,  upon 
the  same  day,  Savazyo  died  in  the  county  of  Pierce,  and  State  of  Wis- 
consin. The  question  in  the  case  is  whether  the  indictment  charges 
the  commission  of  an  offence  in  the  county  of  Washington.  It  is  for 
his  acts  that  defendant  is  responsible.  They  constitute  his  offence. 
The  place  where  they  are  committed  must  be  the  place  where  his  offence 
is  committed,  and  therefore  the  place  where  he  should  be  indicted  and 
tried.  In  this  instance  the  acts  with  which  defendant  is  charged, 
to  wit,  the  stabbing  and  wounding,  were  committed  in  Washington 
County.  The  death  which  ensued  in  Pierce  County,  though  it  went  to 
characterize  the  acts  committed  in  Washington  County,  was  not  an  act 
of  defendant  committed  in  Wisconsin,  but  the  consequence  of  his  acts 
committed  in  Washington  County,  against  the  peace  and  dignity  of  the 
State  of  Minnesota.  We  are  therefore  of  opinion  that  the  indictment 
charges  the  commission  of  the  crime  of  murder  in  Washington  County, 
and,  upon  the  questions  certified  to  this  court  by  the  court  below,  that 
the  demurrer  to  the  indictment  should  be  overruled  Kiley  /•,  State, 
y  Humph.  646;  Com.  v.  Parker,  2  Piek.  550,  559;  1  East,  P.  C.  c.  5, 
§  128  ;  Hex  i'.  Burdett,  4  B.  &  Aid.  95,  173  ;  Grosvenor  v.  Inhabitants, 
&c.,  12  East,  244  ;  People  v.  Gill,  6  Cal.  637 ;  State  v.  Carter,  3  Dutch. 
499  ;  1  Hale  P.  C.  c  33  ;  1  Bish.  Cr.  Law,  §  83  ;  1  Bish.  Cr.  Proc. 
§  67;  2  Wharton  Cr.  Law,  §  1052.' 

1  Ace.  State  v.  Chapin,  17  Ark.  561 ;  State  v.  Moore,  26  N.  H,  448.     But  see  State 
V.  Orady,  34  Conn.  118  ;  State  v.  Ayers,  8  Baxter,  96.  —  Ed. 

'  Ace.  Green  r.  State,  66  Ala.  40;  U.  S.  v.  Guiteau,  1  Mack.  493.     See  also  the 


404  LINDSEY  V.   STATE.  [CHAP.  XI. 


LINDSEY  V.  STATE. 
Supreme  Court  of  Ohio.     1882. 

{Reported  38  Ohio  State,  507.] 

The  plaintiff  in  error,  and  one  John  T.  Morris,  were  jointly  indicted 
in  Jefferson  County.  The  charge  is  that  they  did  unlawfully  and 
feloniously  utter  and  publish  in  said  county,  as  true  and  genuine,  a 
certain  false,  forged,  and  counterfeit  deed  of  real  estate,  purporting  to 
be  executed  and  acknowledged  by  Maurice  F.  Thornton  and  wife,  be- 
fore Herman  E.  Shuster,  a  notary  public  of  the  State  of  Missouri,  and 
to  convey  certain  lands  in  that  State  to  James  TurubuU,  of  Jefferson 
County,  Ohio. 

The  plaintiff  in  error  had  a  separate  trial,  and  was  convicted  and 
sentenced. 

The  evidence  tended  to  show  that  the  deed  was  a  forgery,  executed 
in  St.  Louis  by  the  notary  public  by  the  procurement  of  Liudsey,  who 
then  and  thereafter,  until  forcibly  brought  to  Ohio,  was  never  in  this 
State ;  that  this  deed  was  delivered  by  Lindsey  or  bis  agent  to  his  co- 
defendant  Morris  (who  is  awaiting  his  trial),  and  by  him  was  sent  by 
mail  toT.  &  D.  Hall,  real  estate  agents  in  Steubenville,  through  whom  it 
was  uttered  and  published  by  a  sale  of  the  land  to  Turnbull.  T.  &  D. 
Hall  were  the  innocent  agents  in  the  transaction,  and  received  and 
accounted  for  the  purchase-money,  less  commissions.' 

Johnson,  J.  Two  questions  are  presented  on  the  foregoing  state- 
ment :  — 

First.    Had  the  court  jurisdiction  over  the  plaintiff  in  error?  and, 

Second.  Were  the  conveyances  of  other  lands  admissible  for  the 
purpose  of  showing  guilty  knowledge  ?  ^ 

First.  As  to  the  jurisdiction  of  the  court;  Is  the  crime  charged  an 
extra-territorial  crime?  Was  it  committed  by  the  accused  in  Missouri, 
or  in  Ohio  ? 

If  he  were  indicted  for  the  forgery  of  this  deed,  he  could  not  be 
punished  in  Ohio,  as  it  is  conceded  that  all  his  acts  that  constitute 
that  crime  were  committed  in  Missouri.  When  he  procured  the  notary 
in  St.  Louis  to  forge  the  signatures,  and  the  acknowledgment  of  the 
grantors,  with  the  criminal  intent,  the  crime  of  forgery  was  consum- 
mated in  the  State  of  Missouri.  But  this  is  not  the  charge  in  the  case 
at  bar.  It  is  for  knowingly  uttering  and  publishing  as  true  and  genu- 
ine a  false  and  forged  deed.  It  is  wholly  immaterial  where  the  forgery 
was  committed. 

following  cases  for  decisions  upon  the  locality  of  crime:  Allison  v.  Com.,  83  Ky.254 
(receiving  stolen  goods) ;  People  v.  Arnold,  46  Mich.  268  (conspiracy)  ;  Lovelace  v. 
State,  12  Lea,  721  (embezzlement).  —Ed. 

1  Part  of  the  evidence  and  the  arguments  of  counsel  are  omitted. 

2  That  portion  of  the  opinion  which  relates  to  the  second  question  is  omitted. 


SFXT.  l]  LINDSEY   V.    STATE.  405 

The  question  therefore  is,  was  tliis  deed  uttered  and  published  in 
Jefferson  County,  Ohio,  and  was  Liudsey  guilty  of  this  crime? 

That  this  forged  deed  was  uttered  and  published  in  Ohio  by  T.  &  D. 
Hall,  who  supposed  it  was  genuine,  is  clear  from  the  evidence. 

Now,  it  is  assumed  that  the  jury  had  evidence  to  warrant  them  in 
linding  that  T.  &  D.  Hall  did  so  utter  and  publish  this  deed  by  the 
procurement  of  Lindsey. 

The  crime  was  therefore  completed  or  consummated  in  Ohio,  through 
tlie  instrumentality  of  an  innocent  agent.  It  is  wliolly  immaterial 
whether  his  co-defendant  IMorris  was  his  confederate  or  his  dupe,  as  in 
either  case  the  acts  of  Morris  by  correspondence  mailed  in  St.  Louis 
to  T.  &  1).  Hall  were  simply  the  means  used  to  consummate  a  crime 
in  Ohio.  The  crime  had  its  inception  in  Missouri,  but  it  was  com- 
mitted in  Ohio  by  innocent  agents.  If  a  letter  containing  a  forged 
instrument  is  luailed  at  one  place  to  be  sent  to  another,  the  venue  must 
be  laid  where  the  letter  is  received.     3  Greenl.  §  112. 

The  crime  of  uttering  and  publishing  is  not  complete  until  the  paper 
comes  to  the  hands  of  some  one  other  than  the  accused,  and  if  it  be 
sent  by  mail  for  the  purpose  of  being  there  used,  the  crime  is  not 
consummated  until  it  is  received  by  the  person  to  whom  it  is  to  be 
delivered.  It  is  a  fundamental  principle  that  a  person  is  responsible 
criminally  for  acts  committed  by  his  procurement  as  well  as  for  those 
done  in  person.  The  inherent  power  of  the  state  to  punish  the  utter- 
ing and  publication  of  forged  instruments  within  its  territorial  limits, 
without  regard  to  the  place  where  the  forgery  was  committed,  or  pur- 
pose was  formed,  is  essential  to  the  protection  of  her  people.  It  is 
now  a  generally  accepted  principle  that  one  who  in  one  county  or  state 
employs  an  innocent  agent  in  another  to  commit  a  crime,  is  liable  In 
the  latter  county  or  state.  Robbins  v.  The  State,  8  Ohio  St.  131  ; 
Norris  v.  The  State,  25  Ohio  St.  217;  1  Whart.  Grim.  Law  (7th  ed.), 
§§  210,  278;  see  also  CommonAvealth  v.  Macloon,  101  Mass.  1  ;  Com- 
monwealth V  Smith,  11  Allen  (Mass.),  243  ;  Commonwealth  r.  Bland- 
ing,  3  Pick.  304 ;  Rex  v.  Johnson,  7  East,  65  ;  Wh.  Con.  of  L.  §§  877- 
921;  People  o.  Adams,  3  Deuio,  190,  affirmed  1  N.  Y.  173;  United 
States  V.  Davis,  2  Sumn.  482  :  State  v.  Wyckoff,  2  Vroom  (N.  J.)  68  ; 
Commonwealth  v.  Gillespie,  7  Serg.  &  R.  469  ;  Stillman  v.  ^Yhite  Rock 
Co.,  3  \Yoodb.  &  M.  538  ;  Rex  v.  Garrett,  6  Cox  C.  C.  260  ;  Rex  v. 
Jones,  4  Cox  C.  C.  198;  State  v.  Grady,  34  Com.  118.^ 

Pub.  Stats,  ch.  210,  §  5.  [An  accessory]  may  be  indicted,  tried, 
and  punished  in  the  same  court  and  county  where  the  principal  felon 
might  be  indicted  and  tried,  although  the  offence  of  counselling,  hiring, 
or  procuring  the  commission  of  such  felony  was  committed  on  the  high 
seas,  or  on  land  either  within  or  without  the  limits  of  this  state.^ 

>  Ace.  Reg.  V.  Taylor,  4  F.  &  F.  511  ;   People  i;.  Adams,  3  Den.  190;  1  N.  Y.  173. 
See  Reg.  i-.  Finkelstein,  16  Cox  C.  C.  107.  —  Ed. 
«  See  Cora.  i.  Pettes,  114  Mass.  307.  —  Ed. 


406  STATE   V.   KNIGHT.  [CHAP.  XI. 

Penal  Code  of  New  York,  §  32.  An  accessory  to  a  felony  may 
be  indicted,  tried,  and  convicted,  either  in  the  county  where  he  be- 
came an  accessory,  or  in  the  county  where  the  principal  felony  was 
committed. 


SECTION    II. 

Statutory/  Jurisdiction. 

STATE   V.  KNIGHT. 
Superior  Court  of  North  Carolina.     1799. 

[Reported  2  Haywood,  109.] 

He  was  indicted  of  passing  counterfeit  bills  of  credit,  of  the  likeness 
of  the  genuine  bills  of  credit  of  this  state,  in  Virginia.  The  indictment 
was  drawn  upon  the  Act  of  1784,  c.  25,  §  4  :  "  And  whereas  there  is 
reason  to  apprehend  that  wicked  and  ill-disposed  persons  resident  in 
the  neighboring  states  make  a  practice  of  counterfeiting  the  current 
bills  of  credit  of  this  state,  and  by  themselves  or  emissaries  utter  or 
vend  the  same  with  an  intention  to  defraud  the  citizens  of  this  state : 
Be  it  therefore  enacted  that  all  such  persons  shall  be  subject  to  the 
same  mode  of  trial,  and  on  conviction  liable  to  the  same  pains  and 
penalties,  as  if  the  offence  had  been  committed  within  the  limits  of  this 
state,  and  be  prosecuted  in  the  Superior  Court  of  any  district  within 
this  state."     And  he  was  convicted. 

Per  curiam.  This  state  cannot  declare  that  an  act  done  in  Virginia 
b}'  a  citizen  of  Virginia  shall  be  criminal  and  punishable  in  this  state. 
Our  penal  laws  can  only  extend  to  the  limits  of  this  State,  except  as  to 
our  own  citizens.  But  granting  that  our  Legislature  could  enact  laws 
for  the  punishment  of  offences  committed  in  Virginia,  still  this  clause 
only  extends  by  implication  to  acts  done  in  Virginia ;  and  no  penal 
law  can  be  construed  by  implication,  nor  otherwise  than  by  the  express 
letter. 

He  was  discharged.^ 

1  Ace.  People  v,  Merrill,  2  Park.  590.  Contra,  Hanks  v.  State,  13  Tex.  App.  289. 
—  Ed. 


SECT.  II.]  STATE   V.    CARTER.  407, 


STATE  u    CARTER. 
Supreme  Court  of  New  Jeuset.    1859. 

[Reported  3  Diitcher,  499.] 

Vredenburgh,  J.  The  indictment  charges  that  the  defendant,  on 
the  2t)th  of  December,  1.S58,  in  the  city  of  New  York,  gave  one  Brush- 
ingham  several  mortal  bruises,  of  which,  until  the  Slstof  December, 
1H58,  as  well  in  New  York  as  in  Hudson  County,  in  this  state,  he  lan- 
guished, and  of  which,  in  said  Hudson  County,  he  then  died.  To  this 
indictment  the  defendant  pleaded  that  the  court  had  not  jurisdiction 
of  tlie  cause.  The  defendant,  we  must  assume,  was  a  citizen  of  the 
State  of  New  York.  Nothing  was  done  by  the  defendant  in  this  state. 
"When  the  blow  was  given,  both  parties  were  out  of  its  jurisdiction,  and 
within  the  jurisdiction  of  the  State  of  New  York.  The  only  fact  con- 
nected with  the  offence  alleged  to  have  taken  place  within  our  juris- 
diction is,  that  after  the  injury,  the  deceased  came  into,  and  died  in 
this  state.  This  is  not  the  case  where  a  man  stands  on  the  New  York 
,  side  of  the  line,  and  shooting  across  tlie  border,  kills  one  in  New  Jer- 
I  sey.  AVhen  that  is  so,  the  blow  is  in  fact  struck  in  New  Jersey.  It  is 
^he  defendant's  act  in  this  state.  The  passage  of  the  ball,  after  it 
crosses  the  boundary,  and  its  actual  striking,  is  the  continuous  act  of 
the  defendant.  In  all  cases  the  criminal  act  is  the  impinging  of  the 
weapon,  whatever  it  may  be,  on  the  person  of  the  party  injured,  and 
that  must  necessarily  be  where  the  impingement  happens.  And  whether 
the  sword,  the  ball,  or  any  other  missile,  passes  over  a  boundary  in  the 
act  of  striking,  is  a  matter  of  no  consequence.  The  act  is  where  it 
strikes,  as  much  where  the  party  who  strikes  stands  out  of  the  state, 
as  where  he  stands  in  it. 

Here  no  act  is  done  in  this  state  by  the  defendant.  He  sent  no  mis- 
sile, or  letter,  or  message,  that  operated  as  an  act  within  this  state. 
The  coming  of  the  party  injured  into  this  state  afterwards  was  his  own 
voluntary  act,  and  in  no  way  the  act  of  the  defendant.  If  the  defend- 
ant is  liable  here  at  all,  it  must  be  solely  because  the  deceased  came 
and  died  here  after  he  was  injured.  Can  that,  in  the  nature  of  things, 
make  the  defendant  guilty  of  murder  or  manslaughter  here?  If  it  can, 
then  for  a  year  after  an  injury  is  inflicted,  murder,  as  to  its  jurisdic- 
tion, is  ambulatory  at  the  option  of  the  party  injured,  and  becomes 
punishable  as  such  wherever  he  may  see  fit  to  die.  It  may  be  man- 
slaughter, in  its  various  degrees,  in  one  place,  murder,  in  its  various 
degrees,  in  another.  Its  punishment  may  be  fine  in  one  country,  im- 
prisonment, whipping,  beheading,  strangling,  quartering,  hanging,  or 
torture  in  another,  and  all  for  no  act  done  by  the  defendant  in  any  of 
these  jurisdictions,  but  only  because  the  party  injured  found  it  coo 
venient  to  travel. 


408  STATE   V.    CARTER,  [CHAP.  XI. 

This  is  not  like  the  case  of  stolen  goods,  carried  from  one  state  to 
another,  or  of  leaving  the  state  for  any  purpose  wliatever,  like  that 
for  fighting  a  duel,  or  of  sending  a  letter  or  messenger,  or  message, 
for  any  purpose,  into  another  state ;  for  in  all  these  cases  the  cogni- 
zance is  taken  for  an  act  done  within  the  jurisdiction. 

If  the  acts  charged  in  this  indictment  be  criminal  in  Xew  Jersey,  it 
must  be  either  by  force  of  some  statute  or  upon  general  principles. 
There  is  no  statute,  unless  it  be  the  act  to  be  found  in  Xix.  Dig.  184, 
o.  3.  But  this  evidently  relates  to  murder  only,  and  not  to  man- 
slaugliter. 

But  I  cannot  make  myself  believe  that  the  legislature,  in  that  act, 
intended  to  embrace  cases  where  the  injur}'  was  intiieted  within  a  for- 
eign jurisdiction  without  any  act  done  by  the  defendant  witiiiu  our 
own.  Such  an  enactment,  upon  general  principles,  would  necessarily 
be  void ;  it  would  give  the  courts  of  this  state  jurisdiction  over  all  the 
sul:)jects  of  all  the  governments  of  the  earth,  with  power  to  try  and 
punish  them,  if  they  could  by  force  or  fraud  get  possession  of  their 
persons  in  all  cases  where  personal  injuries  are  followed  by  death. 

An  act,  to  be  criminal,  must  be  alleged  to  be  an  offence  against  the 
sovereignty  of  the  government.  This  is  of  the  verj-  essence  of  crime 
punishable  by  human  law.  How  can  an  act  done  in  one  jurisdiction 
be  an  offence  against  the  sovereignty  of  another  ?  All  the  cases  turn 
upon  the  question  where  the  act  was  done.  The  person  who  does  it 
may,  when  he  does  it,  be  withm  or  without  the  jurisdiction,  as  by 
shooting  or  sending  a  letter  across  the  border ;  but  the  act  is  not  the 
less  done  within  the  jurisdiction  because  the  person  who  does  it  stands 
without.  This  case  is  not  at  all  like  those  where  the  defendant  is  tried 
in  England  for  a  crime  committed  in  one  of  the  dependencies  of  the 
British  empire.  There  the  act  is  done,  and  the  crime  is  in  fact  com- 
mitted against  the  sovereignty  of  the  British  crown,  and  only  the  place 
of  trial  is  changed. 

If  our  government  takes  jurisdiction  of  this  case,  it  must  be  not  by 
virtue  of  any  statute,  but  because  it  assumes  general  power  to  punish 
acts  mala  in  se  wherever  perpetrated  in  the  world.  The  fact  of  the 
party  injured  can  give  no  additional  jurisdiction. 

Such  crimes  may  be  committed  on  the  high  seas,  in  lands  where 
there  are,  or  where  there  are  not  regular  governments  established. 
When  done  upon  the  high  seas,  they  may  be  either  upon  our  vessels 
or  upon  vessels  belonging  to  other  governments.  "When  done  upon 
our  vessels,  in  whatever  solitary  corner  of  the  ocean,  from  the  necess- 
ity of  the  case,  and  by  universal  acceptance,  the  vessel  and  all  it  con- 
tains is  still  within  our  jurisdiction,  and  when  the  vessel  comes  to  port 
the  criminal  is  still  tried  for  an  act  do7ie  within  our  jurisdiction.  But 
we  have  never  treated  acts  done  upon  the  vessels  of  other  governments 
as  within  our  jurisdiction,  nor  has  such  ever  been  done  by  any  civilized 
government. 

When  an  act  /nalum  in  se  is  done  in  solitudes,  upon  land  where  there 


tjECT.  II.]  COMMONWEALTH   V.    MACLOON.  400 

has  not  yet  been  formerly  extended  any  supreme  human  power,  it  may 
be  that  any  regular  government  may  feel,  as  it  were,  a  divine  commis- 
sion to  try  and  puniHh.  It  may,  as  in  cases  of  crime  committed  in  the 
solitudes  of  the  ocean,  upon  and  by  vessels  belonging  to  no  govern- 
ment, pro  hdc  vice  arrogate  to  itself  the  prerogative  of  omnipotence, 
and  hang  the  pirate  of  the  land  as  well  as  of  the  water.  Further  than 
this  it  could  not  have  been  intended  that  our  statute  should  apply. 
But  here  the  act  was  done  in  the  State  of  New  York,  a  regularly  organ- 
ized and  acknowledged  supreme  government.  The  act  was  a  crime 
against  their  sovereignty.  That  was  supreme  within  its  territorial 
limits  and  in  its  very  nature,  and  in  fact  is  exclusive.  Tliere  cannot 
be  two  sovereignties  supreme  over  the  same  place  at  the  same  time 
over  the  same  subject-matter.  The  existence  of  theirs  is  exclusive  of 
ours.  We  may  exercise  acts  of  sovereignty  over  the  wastes  of  ocean 
or  of  land,  but  we  nuist  necessarily  stop  at  the  boundary  of  another. 
The  allegation  of  an  act  done  in  another  sovereignty,  to  be  a  violation 
of  our  own,  is  simply  alleging  an  impossibility,  and  all  laws  to  punish 
such  acts  are  necessarily  void. 

It  is  said  that  if  we  do  not  take  jurisdiction,  the  defendant  will  go 
unpunished,  inasmuch  as,  the  party  injured  not  dying  in  New  York,  he 
could  not  be  guilty  of  murder  there.  But  New  York  may  provide  by 
law  for  such  cases,  and  if  she  does  not,  it  is  their  fault,  and  not  ours. 
The  act  done  is  against  their  sovereignty,  and  if  she  does  not  choose 
to  avenge  it,  it  is  not  for  us  to  step  in  and  do  it  for  them. 

I  think  that  the  Oyer  and  Terminer  should  be  advised  that  no  crim« 
against  this  state  is  charged  in  the  indictment.^ 


COMMONWEALTH  v.  MACLOON. 
Supreme  Judicial  Court  of  Massachusetts.     1869. 

[Reported  101  Massachtisetts,  l.| 

Gray,  J.*  The  defendants,  the  one  a  citizen  of  Maine,  and  the 
other  a  British  subject,  have  been  convicted  in  the  Superior  Court  in 
Suffolk  of  manslaughter  of  a  man  who  died  within  the  county  in 
consequence  of  injuries  inflicted  by  them  upon  him  in  a  British  mer- 
chant ship  on  the  high  seas. 

The  principal  question  in  the  case  is  that  of  jurisdiction,  which 
louclies  the  sovereign  power  of  the  Commonwealth  to  bring  to  justice 
tlie  miuderers  of  those  who  die  within  its  borders.  This  question  has 
been  ably  and  thoroughly  argued,  and  has  received  the  consideration 
which  its  importance  demands. 

»  Ace.  State  r.  Kelly,  76  Me.  331.  — Ed. 
'  Part  of  the  opinion  only  is  given. 


410  common^t;alth  v.  macloon.  [chap.  xi. 

The  statute  on  which  the  defendants  were  indicted,  after  prescribing 
the  punishment  for  murder  and  manslaughter,  provides  that  "  if  a  mor- 
tal wound  is  given,  or  other  violence  or  injury  inflicted,  or  poison  is 
administered,  on  the  high  seas,  or  on  land,  either  within  or  without  the 
limits  of  this  state,  b}-  means  whereof  death  ensues  in  an}'  county 
thereof,  such  offence  maj-  be  prosecuted  and  punished  in  the  county 
where  the  death  happens."     Gen.  8ts.  c.  171,  §  19. 

This  statute  is  founded  upon  the  general  power  of  the  legislature, 
except  so  far  as  restrained  by  the  constitutions  of  the  Commonwealth 
and  of  the  United  States,  to  declare  any  wilful  or  negligent  act  which 
causes  an  injury  to  person  or  property  within  its  territory  to  be  a 
crime,  and  to  provide  for  the  punishment  of  the  offender  upon  being 
apprehended  within  its  jurisdiction. 

Whenever  any  act,  which,  if  committed  wholly  within  one  jurisdiction 
would  be  criminal,  is  committed  partlj-  in  and  partly  out  of  that  juris- 
diction, the  question  is  whether  so  much  of  the  act  as  operates  in  the 
county  or  state  in  which  the  offender  is  indicted  and  tried  has  been  de- 
clared to  be  punishable  by  the  law  of  that  jurisdiction. 

A  good  illustration  of  this  is  afforded  by  the  cases  of  bringing  stolen 
goods  from  one  jurisdiction  to  another.  It  has  been  held  from  the 
earliest  times  that  if  a  thief  steals  goods  in  one  county,  and  brings 
them  into  another,  he  may  be  indicted  in  either  county,  because  his 
unlawful  carr3'ing  in  the  second  is  deemed  a  continuance  of  the  unlaw- 
ful taking,  and  so  all  the  essential  elements  of  larceny  exist  in  the 
second  ;  but  if  he  takes  the  goods  by  force,  although  this  is  robbery  in 
the  county  in  which  he  first  takes  them,  it  is  but  larceny  in  any  county 
into  which  he  afterwards  carries  them,  because  no  violence  to  the  per- 
son has  been  used  in  the  latter.  1  Hale  P.  C.  507,  508,  536 ;  2  Hale 
P.  C.  163  ;  4  BL  Com.  305.  If  he  steals  goods  on  the  high  seas  or  in 
a  foreign  country,  and  brings  them  into  this  state,  it  is  not  a  common 
law  larceny,  because  there  has  been  no  taking  against  the  law  which  is 
invoked  to  punish  him.  Butler's  Case,  13  Co.  53:  s,  c.  3  Inst.  113; 
Commonwealth  v.  Uprichard,  3  Gra}',  434.  Yet  if  the  legislature  see 
fit  to  provide  that  the  bringing  into  the  state  of  goods  taken  without 
right  from  the  owner  in  a  foreign  country,  shall  be  punished  here  as 
larceny,  it  is  within  their  constitutional  authority  to  do  so.  People  v. 
Burke,  11  Wend.  129  ;  State  v.  Seay,  3  Stew.  123  ;  Hemmaker  v.  State, 
12  jNIissouri,  453.  By  a  series  of  decisions,  beginning  while  the  states 
of  this  Union  were  colonies  of  Great  Britain,  it  has  been  held  that  a 
bringing  into  Massachusetts  of  goods  stolen  in  another  colony  or  state 
subject  to  the  same  national  sovereignty  might  be  indicted  here  as  a 
larceny  at  common  law.  Commonwealth  v.  Andrews,  2  Mass.  14,  and 
cases  cited  ;  Commonwealth  v.  Holder,  9  Gray,  7.  And  in  other  states, 
in  which  the  common  law  has  been  held  not  to  reach  such  a  case,  a 
statute  declaring  such  bringing  to  be  larceny  in  the  state  into  which  the 
goods  are  brought  has  been  acknowledged  to  be  valid  and  binding  upon 
the  courts.  Simmons  v.  Commonwealth,  5  Binn.  619 ;  Simpson  v. 
State,  4  Humph.  461 ;  Beal  v.  State,  15  Ind.  378. 


KECT.  II.]  COMMONWEALTH   V.    MACLOON.  411 

The  general  principle,  that  a  man  who  docs  a  criminal  act  in  one 
county  or  state  may  be  held  liable  for  its  continuous  operation  in 
another,  has  been  affirmed  in  various  other  cases.  Thus  a  man  who 
"  erects  a  nuisance  in  a  river  or  stream  in  one  county  or  state  is  liable, 
criminally  as  well  as  civilly,  in  an}'  count}-  or  state  in  which  it  injures 
the  land  of  another.  Bulwer's  Case,  7  Co.  2  b,  3  b  ;  2  Hawk.  c.  2.0, 
§  37 ;  Com.  Dig.  Action,  N.  3,  11  ;  Abbott,  C.  J.,  in  The  King  v.  Bur- 
dett,  4  B.  &  Aid.  M^y,  176  ;  Thompson  v.  Crocker,  9  Pick.  59  ;  Stillman 
V.  White  Roc-k  INIanufacturing  Co.  3  Woodb.  &  Min.  538.  And  one 
who  pul)Ushes  a  libel  in  another  state,  in  a  newspaper  which  circulates 
in  this  commonwealth  also,  is  liable  to  indictment  here.  Common- 
wealth ?».  Blanding,  3  Pick.  304.  There  is  no  more  reason  against 
holding  the  wrong-doer  criminall}'  liable  in  the  county  and  state  where 
his  victim  dies  from  the  contiiuious  operation  of  his  mortal  blow,  than 
in  those  to  which  the  flowing  water  carries  the  injurious  effect  of  his 
nuisance  to  propert}-,  or  the  circulation  of  his  libel  extends  the  injury 
to  reputation. 

Criminal  homicide  consists  in  the  unlawful  taking  by  one  human 
being  of  the  life  of  another  in  such  a  manner  that  he  dies  within  a  year 
and  a  day  from  the  time  of  the  giving  of  the  mortal  wound.  If  com- 
mitted with  malice,  express  or  implied  by  law,  it  is  murder ;  if  without 
malice,  it  is  manslaughter.  No  personal  injury,  however  grave,  which 
does  not  destroy  life,  will  constitute  either  of  these  crimes.  The  injury 
must  continue  to  affect  the  l)ody  of  the  victim  until  his  death.  If  it 
ceases  to  operate,  and  death  ensues  from  another  cause,  no  murder  or 
manslaughter  has  been  committed.  But  if  the  bullet  remains  in  the 
body  so  as  to  press  upon  or  disturb  the  vital  organs  and  ultimately  pro- 
duce death,  or  the  wound  or  the  poison  causes  a  gradual  decline  of 
health,  ending  in  death,  the  injury  and  death  are  as  much  the  continu- 
ous operation  and  eff'ect  of  the  unlawful  act  as  if  the  shot,  the  stab,  or 
the  poison  proves  instantly  fatal.  The  unlawful  intent  with  which  the 
wound  is  made  or  the  poison  administered  attends  and  qualifies  the  act 
until  its  final  result.  No  repentance  or  change  of  purpose,  after  inflict- 
ing the  injur}-  or  setting  in  motion  the  force  by  means  of  which  it 
is  inflicted,  will  excuse  the  criminal.  If  his  unlawful  act  is  the 
efficient  cause  of  the  mortal  injury,  his  personal  presence  at  the  time  of 
its  beginning,  its  continuance,  or  its  result,  is  not  essential.  He  may 
be  held  guilty  of  homicide  by  shooting,  even  if  he  stands  afar  ofl",  out 
of  sight,  or  in  another  jurisdiction.  1  Hale  P.  C,  475  ;  People  v. 
Adams,  3  Denio,  207;  s.  c.  1  Comst.  176,  179.  If  he  knowingly  lets 
loose  a  dangerous  beast,  which  runs  any  distance  and  then  kills  a  man  ; 
or  incites  a  madman  or  a  child  not  of  years  of  discretion  to  commit 
murder  in  his  absence,  whereby  any  one  is  killed  ;  or,  with  intent  to 
murder,  leaves  poison  with  another  person  to  be  administered  to  a 
third,  and  the  poison  is  administered  by  the  same  or  another  innocent 
agent,  and  causes  the  death  of  the  person  intended,  or  any  other :  he  is 
responsible  as  princip.al,  to  the  same  extent  as  if  personally  present  at 


412  COMMONWEALTH   V.    MACLOON.  [ciIAP.  XI. 

the  actual  killing.  1  Hale  P.  C  430,  431 ,  G15,  G17  ;  Regina  v.  Michael, 
9  C.  &  P.  356  ;  s.  c.  2  Moody,  120;  People  v.  Adams,  siipra.  And  if 
he  wilfully  inflicts  a  wound  which  results  fatalh',  he  Is  not  excused  by 
the  fact  that  the  negligence  of  the  wounded  man  or  the  unskilful  treat- 
ment of  surgeons  hastens  or  contributes  to  the  death.  1  Hale  P.  C. 
428  ;  Commonwealth  v.  Hackett,  2  Allen,  136.  The  person  who  un- 
lawfully sets  the  means  of  death  in  motion,  whether  through  an  irre- 
sponsible instrument  or  agent,  or  in  the  bod}'  of  the  victim,  is  the 
guilty  cause  of  the  death  at  the  time  and  place  at  which  his  unlawful 
act  produces  its  fatal  result;  and,  according  to  the  great  weight  of 
authority,  may  be  then  and  there  tried  and  punished,  under  an  express 
statute,  if  not  b}'  the  common  law. 

The  crime  not  being  murder  or  manslaughter  before  the  death,  an 
indictment  alleging  the  stroke  at  one  day  and  place,  and  the  death  at 
another  day  and  place,  is  good  if  it  alleges  the  murder  or  manslaughter 
to  have  been  at  the  time  and  place  of  the  death,  but  bad  if  it  alleges 
that  the  defendant  killed  and  murdered  the  deceased  at  the  day  and 
place  at  which  the  stroke  was  given,  "  for,"  in  the  words  of  Lord  Coke, 
"  though  to  some  purpose  the  death  hath  relation  to  the  blow,  yet  this 
relation,  being  a  fiction  in  law,  maketh  not  the  felony  to  be  then  com- 
mitted." 2  Inst.  318  ;  1  Hale  P.  C.  427;  2  Hale  P.  C.  188.  So  the 
year  and  day  "  after  the  deed,  —  apres  le  fait"  within  which  by  the 
Statute  of  Gloucester  an  appeal  of  murder  must  be  brought,  was  held 
to  run  not  from  the  blow,  but  from  the  death,  "  for  before  that  tmie  no 
felon}-  was  committed."  2  Inst.  320;  1  Hale  P.  C.  427.  And  man- 
slaughter arising  out  of  a  blow  struck  in  one  count}",  followed  by  death 
in  another,  was  held  by  Mr.  Justice  Littledale  to  be  a  felony  "  begun  in 
one  county  and  completed  in  another,"  within  the  meaning  of  a  modern 
English  statute  authorizing  such  a  felony  to  be  indicted  in  either 
county.      Rex  v.  Jones,  1  Russell  on  Crimes  (3d  Eng.  ed.),  549,  550. 

Whenever  at  common  law  murder  escaped  punishment  at  the  place 
of  the  death,  it  was  not  from  a  want  of  authority  in  the  government, 
but  from  a  defect  in  the  laws  regulating  the  mode  of  prosecution  and 
trial. 

In  the  beginning  of  the  reign  of  Edward  III.,  according  to  Chief 
Justice  Scrope,  if  a  man  died  in  one  county  of  a  wound  received  in  an- 
other, the  murderer  might  be  indicted  and  arraigned  in  the  county 
where  the  death  happened,  "  and  yet  the  cause  of  his  death  began  in 
the  other  county."  Fitz.  Ab.  Corone,  373.  At  a  later  period,  it  was 
held  that  where  a  man  was  feloniously  stricken  or  poisoned  in  one 
county,  and  died  in  another  county,  no  indictment  could  be  found  in 
either  county,  because  both  the  stroke  and  the  death  were  necessary  to 
constitute  the  crime,  and  the  jurors  of  one  county  could  not  inquire  of 
that  which  was  done  in  another,  "  unless,"  as  Lord  Hale  says,  "  speci- 
ally enabled  by  act  of  parliament ;  "  and  for  this  reason  the  custom  at 
one  time  prevailed  of  taking  the  dead  body  into  the  county  where  the 
mortal  stroke  was  given,  and  having  an  indictment  found  and  tried 


SECT.  II.]  COMMONWEALTH   V.    MACLOON.  413 

there  ;  and,  in  carrying  out  the  same  principle,  it  was  held  that  an 
appeal  of  murder,  whicli  required  no  indictment,  but  was  sued  out  by 
the  nearest  relation,  and  prosecuted  by  the  king  only  in  case  of  the  witli- 
drawal  of  the  appellant,  might  be  brought  in  the  county  of  the  death, 
although  the  niortnl  stroke  was  given  in  another  county,  provided  there 
were  legal  means  of  summoning  a  jury  for  the  trial  out  of  both  counties, 
but  nototherwise.  G  Hen.  VII.  10,  pi.  7  ;  3  Inst.  48,  49  ;  2  Hale  P.  C. 
103  ;  1  Stark.  Crim.  PI.  3,  and  notes. 

The  St  of  2  &  3  Edw.  VI.  c.  24,  begins  with  declaring,  "  Forasmuch 
as  the  most  necessary  office  and  duty  of  law  is  to  preserve  and  save 
the  life  of  man,  and  condignl}'  to  punish  such  persons  that  unlawfully 
and  wilfully  murder,  slay,  or  destroy  men,"  and,  after  reciting  the  de- 
fects in  the  previous  laws,  enacts,  '•  for  redress  and  punishment  of 
which  offences  and  safeguard  of  man's  life,"  that  "where  any  person 
or  persons  hereafter  shall  be  feloniously  stricken  or  poisoned  in  one 
county,  and  die  of  the  same  stroke  or  poisoning  in  another  county,  then 
an  indictment  thereof  founden  by  jurors  of  the  county  where  the  death 
shall  happen,  whether  it  shall  be  founden  before  the  coroner  upon  the 
sight  of  such  dead  bod}',  or  before  the  justices  of  peace  or  other  justices 
or  commissioners  which  shall  have  authority  to  inquire  of  such  offences, 
shall  be  as  good  and  effectual  in  the  law,  as  if  the  stroke  or  poisoning 
had  been  committed  and  done  in  the  same  count}-  where  the  party  shall 
die,  or  where  such  indictment  shall  be  so  founden ;  any  law  or  usage  to 
the  contrary  notwithstanding."  That  statute,  passed  within  a  centurj' 
before  the  settlement  of  Massachusetts,  and  manifestly  suitable  to  our 
condition,  would  seem  to  have  been  part  of  our  common  law.  Com- 
monwealth V.  Knowlton,  2  Mass.  534  ;  Report  of  the  Judges,  3  Binn. 
595,  620 ;  State  v.  Moore,  26  N.  H.  448. 

In  the  most  ancient  times  of  which  we  have  any  considerable  records, 
the  English  courts  of  common  law  took  jurisdiction  of  crimes  com- 
mitted at  sea,  both  by  English  subjects  and  b}'  foreigners.  Beufo  v. 
Holtham,  25  Edw.  I.,  in  Selden's  Notes  to  Fortescue,  c.  32;  Case  of 
the  Norman  Master  and  English  Seamen,  40  Assis.  25  ;  s.  c.  Fitz.  Ab. 
Corone,  216  ;  13  Co.  53,  54  ;  2  Hale  P.  C.  12,  13,  and  notes,  and  cases 
cited.  But  after  the  admiralt}'  jurisdiction  had  been  settled  by  the  Sts. 
of  13  and  15  Ric.  II.,  if  a  mortal  stroke  was  given  on  the  high  sea,  and 
the  person  stricken  came  to  land  in  England  and  died  there,  then, 
according  to  the  rule  established  before  the  St.  of  Edw.  VI.  in  the  case 
of  two  counties,  the  courts  of  common  law  could  not  tr}'  the  murderer, 
liecause  no  jury  could  inquire  of  the  stroke  at  sea,  and  the  admiral 
could  not  try  him,  for  want  of  authorit}'  to  inquire  of  the  death  on  land. 
3  Inst.  48.  " 

Both  Lord  Coke  and  Lord  Hale,  however,  were  of  opinion  that  such  a 
murderer  could  not  wholly  escape  punishment,  although  they  dilTered 
as  to  the  mode  of  bringing  him  to  justice  Co.  Lit.  74  b  ;  3  Inst.  48  ; 
2  Hale  P.  C.  12-20. 

Neither  Lord  Coke  nor  Lord  Hale  suggests  any  doubt  of  the  rightful 


414  COiMMONWEALTH   V.    MACLOON.  [CHAP.  XI. 

power  of  the  legislature  to  pass  a  statute  to  punish  whoever  should 
cause  death  within  the  realm  b}'  an  injury  on  the  high  seas.  And  In 
1729  the  parliament  of  Great  Britain  passed  a  statute,  declared  to  be 
''  for  preventing  any  failure  of  justice  and  taking  away  all  doubts 
touching  the  trial  of  murders  in  the  cases  hereinafter  mentioned,"  by 
which  it  was  enacted  that,  where  any  person  should  be  feloniously  stricken 
or  poisoned  upon  the  sea  or  at  any  place  out  of  England,  and  should 
die  of  the  same  stroke  or  poisoning  m  England ;  or  where  any  person 
should  be  feloniously  stricken  or  poisoned  at  any  place  in  England,  and 
should  die  of  the  same  stroke  or  poisoning  upon  the  sea  or  at  an}'  place 
out  of  England ;  in  either  of  said  cases  the  offenders,  both  principals 
and  accessories,  might  be  indicted,  tried,  convicted  and  sentenced  in 
the  count}'  in  England  in  which  such  death-stroke  or  poisoning  should 
happen  respectively,  with  the  same  effect  as  if  the  felonious  stroke  and 
ileath  thereb}'  ensuing,  or  poisoning  and  death  thereby  ensuing,  had 
happened  in  the  same  county.  St.  2  Geo.  II.  c.  21,  That  statute  did 
not  extend  to  the  colonies,  and  was  repealed  by  St.  9  Geo.  IV.  c.  31, 
§  1 ;  and  no  suggestion  appears  to  have  been  made,  while  it  was  in 
force,  of  its  being  limited  in  its  application  to  Britis^h  subjects.  4  Bl. 
Com.  303  ;  1  East  P.  C.  366.  The  only  pubUshed  exposition  of  it  is  in 
an  opinion  given  by  Sir  James  Marriott  as  advocate-general,  who, 
looking  upon  the  subject  in  the  view  of  the  law  of  nations,  wrote: 
"  With  respect  to  murders,  when  persons  die  in  a  foreign  country  of  a 
wound  received  within  this  realm,  or  die  in  this  realm  of  a  wound  re- 
ceived in  a  foreign  countr}',  in  either  alternative  the  party  giving  the 
wound,  and  his  accessor}'  or  accessories,  by  St.  2  Geo.  II.  c  21,  must 
be  tried  in  England,  the  statute  considering  the  cause  and  effect  as  one 
continuity  of  action  without  interval,  in  order  to  found  a  domestic  juris- 
diction and  to  reach  the  crime."  Forsyth's  Opinions  on  Constitutional 
Law,  218.  In  The  King  v.  Farrel,  1  W.  Bl.  459,  Lord  MansfieM 
treated  the  question  whether  a  murder  by  a  mortal  stroke  on  the  high 
seas,  from  which  death  ensued  in  Ireland,  was  triable  in  Ireland,  as  de- 
{)ending  upon  the  question  whether  there  was  any  Irish  statute  upon 
the  subject.  In  fact,  the  Irish  St.  of  10  Car.  I.  contained  provisions 
similar  to  the  English  Sts.  of  Edw.  VI.  and  Geo.  II.  1  Gabbett's 
Crim.  Law,  501.  Thus  stood  the  law  of  the  mother  country  at  the 
time  of  the  American  Revolution. 

The  courts  of  the  United  States  have  held  that  a  mortal  stroke  0!i 
the  high  seas,  from  which  death  ensues  on  land,  either  in  a  foreign 
country  or  within  the  United  States,  cannot  be  indicted  under  an  act  of 
Congress  providing  for  the  punishment  of  murder  or  manslaugliter  on 
the  high  seas.  The  reason  was  thus  stated  by  Mr.  Justice  Washington, 
in  the  leading  case:  "The  death,  as  well  as  the  mortal  stroke,  must 
happen  on  the  high  seas,  to  constitute  a  murder  there."  "  The  present 
is  a  case  omitted  in  the  law  ;  and  the  indictment  cannot  be  sustained." 
"  It  would  be  inconsistent  with  common  law  notions  to  call  it  murder; 
but  Congress,  exercising  the  constitutional  power  to  define  felonies  oa 


SECT.  II.]  COMMONWEALTH    V.    MACLOON.  415 

the  liigb  seas,  in&y  certainly  provkle  that  a  mortal  stroke  on  the  high 
sea,  wherever  the  death  may  happen,  shall  be  adjudged  to  be  a  felony," 
United  States  o.  M'Gill,  1  Dall.  -127  ;  s.  c.  1  Wash.  C.  C.  463.  United 
States  ('.  Armstrong,  2  Curtis  C.  C.  446.  Congress  has  accordingly 
pa.ssod  statutes  providing  Jbr  the  puni.shmcnt,  at  first  of  murder  only, 
and  afterwards  of  manslaughter,  by  a  blow,  wound  or  poison  on  the 
high  seas,  or  in  any  river  or  bay,  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States,  and  out  of  the  jurisdiction  of  any 
particular  slate,  followed  by  death  on  land.  U.  S.  Sts.  182o,  c  65,  §  4  ; 
18o7,  c.  116,  §  1. 

The  legislature  of  the  Commonwealth,  from  an  earlier  period,  has 
asserted  the  right  of  punishing  such  crimes  in  the  county  where  they 
take  final  eftect  by  destroying  life.  At  February  term,  1795,  of  this 
court  in  Suffolk,  a  conviction  of  manslaughter  at  common  law  was  had 
upon  an  indictment  charging  that  Joseph  Hood  on  the  high  seas  mor- 
tally injured  John  Antony,  by  assaulting  and  beating  him  with  a  rope 
and  a  stave  and  his  hands  and  feet,  and  exposing  him  without  sufficient 
covering  to  the  cold,  winds,  and  storms,  and  depriving  him  of  necessary 
food,  of  all  which  injuries  he  languished  on  the  high  seas  and  at  Boston 
in  said  county,  and  died  at  Boston.  At  August  term,  I7'J5,  judgment 
was  arrested,  upon  the  ground  that  the  indictment  chaiged  that  the 
cause  of  death  arose  on  the  high  seas  and  not  within  the  jurisdiction  of 
this  court.  Hood's  Case,  Ree.  1795,  fol.  216,  and  papers  on  file.  It 
was  to  cure  the  defect  thus  declared  to  exist  in  our  law,  that  the  legis- 
lature at  its  next  session,  on  the  loth  of  February,  1796,  passed  the 
St.  of  1795,  c.  45,  §  2,  by  which  it  was  enacted  that  "  where  any  per- 
son hereafter  shall  be  feloniously  stricken,  poisoned,  or  injured,  on  the 
high  seas,  and  without  the  limits  of  this  Commonwealth,  and  die  of  the 
same  stroke,  poisoning  or  injury  in  any  count}"  thereof,  that  then  an  in- 
dictment thereof,  found  by  the  grand  jurors  of  the  count}'  where  the 
death  shall  happen,  before  the  justices  of  the  Supreme  Judicial  Court 
there  held,  shall  be  as  good  and  effectual  in  law  as  if  the  stroke  had 
been  given  or  the  poisoning  or  injury  done  in  the  same  county  where 
the  party  shall  die."  By  later  statutes,  all  indictments  are  returned 
into  the  lower  court.  Webster  v.  Commonwealth,  5  Cush.  386  ;  Gen. 
Sts.  c.  171,  §§  1  &  seq.,  21  &  seq.  But  the  substance  of  this  provision, 
omitting  the  word  "  feloniously"  (which  might  be  somewhat  difficult  of 
application  to  an  act  not  done  under  laws  of  which  our  courts  have 
judicial  knowledge)  and  extended  to  cases  in  which  the  mortal  wound 
or  injury  is  given  on  land  without  the  limits  of  the  Commonwealth,  has 
been  embodied  in  the  Rev.  Sts.  c.  133,  §  9,  and  thence,  with  merely 
verbal  changes,  in  the  Gen.  Sts.  c.  171,  §  19,  on  which  this  indictment 
is  founded.  Neither  of  these  statutes  appears  to  have  been  made  the 
subject  of  judicial  exposition.  But  a  law  which  has  been  kept  on  the 
statute  book  for  such  a  length  of  time  by  repeated  enactments  is  not  to 
be  lightly  declared  invalid  for  exceeding  the  legislative  power.  And  it 
comes  within  the  principle  by  which  the  preceding  section,  relating  to 


416  COMMONWEALTH    V.    MACLOON.  [CHAP.  XL 

death  resulting  in  one  county  from  an  unlawful  act  in  another,  was  held 
valid  in  Commonwealth  v.  Parker,  2  Pick.  550,  before  cited. 

A  similar  enactment,  adding,  after  "  high  seas,"  "  or  on  an}-  other 
navigable  waters,"  has  been  sustained  upon  full  argument  and  consider- 
ation by  the  Supreme  Court  of  Michigan.    Tyler  v.  People,  8  Mich.  320. 

The  most  plausible  form  of  the  argument  against  the  jurisdiction  is, 
that  the  coming  into  the  state  is  the  act  not  of  the  wrong-doer,  but  of 
the  injured  person,  and  therefore  should  not  subject  the  former  to  the 
jurisdiction,  merel}'  because  the  latter  happens  to  die  there.  But  it  is 
the  nature  and  the  right  of  every  man  to  move  about  at  his  pleasure, 
except  so  far  as  restrained  by  law ;  and  whoever  gives  him  a  mortal 
blow  assumes  the  risk  of  this,  and  in  the  view  of  the  law,  as  in  that  of 
morals,  takes  his  life  wherever  he  happens  to  die  of  that  wound  ;  and 
may  be  there  punished  if  the  laws  of  the  country  have  been  so  framed 
as  to  cover  such  a  case. 

In  State  v.  Carter,  3  Butcher,  499,  the  supreme  court  of  New  Jersey 
held  that  a  man  could  not  be  indicted  in  that  state  for  manslaughter  by 
mortal  bruises  given  in  New  York,  of  which  the  person  injured  died  in 
New  Jersej'.  But  the  onl}-  statute  of  that  state  upon  the  subject,  as 
was  observed  by  Mr.  Justice  Vi-edenburgh  in  delivering  the  judgment 
of  the  court,  evidentl}'  relates  to  murder  only,  and  not  to  manslaughter. 
His  remarks  upon  the  power  of  the  legislature  of  New  Jersey  to  provide 
for  the  punishment  of  such  a  case  are  therefore  purely  obiter  dicta  ; 
and  they  are  unsupported  by  any  reference  to  authorities,  and  present 
no  considerations  which  require  further  discussion. 

Grosvenor  v.  St.  Augustine,  12  East,  244,  was  not  a  criminal  case, 
but  in  the  nature  of  an  action  against  the  hundred  on  the  St.  of  19 
Geo.  II.  c  34,  §  6,  which  provided  that  if  any  officer  of  the  revenue 
should  be  beaten,  wounded,  maimed  or  killed  b}'  a  smuggler,  the  inhabi- 
tants of  the  lath  in  such  counties  as  were  divided  into  laths,  and  in 
other  counties  the  inhabitants  of  the  hundred,  "  where  such  fact  shall 
be  committed,"  should  pay  all  damages  suffered  by  such  beating, 
wounding  or  maiming,  and  one  hundred  pounds  to  the  executor  or 
administrator  of  each  person  so  killed.  It  was  indeed  held  that  this  pen- 
alty might  be  recovered  b}'  the  executor  of  a  revenue  officer  who  re- 
ceived a  mortal  wound  in  a  boat  between  high  and  low  water  mark,  of 
which  he  afterwards  died  on  the  high  sea,  by  a  shot  fired  from  the  shore 
within  the  lath.  But  that  was  upon  the  construction  of  the  particular 
statute,  as  appears  from  Lord  EUenborough's  judgment.  "  The  shot 
which  produced  the  death,  having  been  fired  from  the  shore  within  the 
lath,  brings  the  case  within  the  fair  meaning  of  the  act,  the  object  of 
which  was  to  make  the  inhabitants  of  that  place  where  the  act  was 
done  which  caused  the  death  answerable  for  it,  in  order  to  interest  them 
in  repressing  the  offences  against  which  the  act  was  levelled."  All  the 
authorities  agree  that  the  mere  fact  of  the  shot  being  fired  from  the 
shore  would  not  give  the  courts  of  common  law  jurisdiction  of  an  in- 
dictment for  homicide.  Rex  v.  Coombes,  2  Leach  (4th  ed.),  388;  2 
Chalmers  Opinions,  217;  United  States  v.  Davis,  2  Sumner,  485. 


SECT.  II. j  COMMONWEALTH   V.   MACLOON.  417 

The  learned  counsel  for  the  defendants  much  relied  on  the  case  of 
Regina  v.  Lewis,  Dearsly  &  Bell,  182  ;  S  C  7  Cox  Crim.  Cas.  277. 
That  was  an  indictment  on  the  St.  of  9  Geo.  IV.  c.  31,  §  8,  which  was 
held  not  to  cover  the  case  of  a  foreigner  dying  in  England  from  injuries 
inflicted  by  another  foreigner  in  a  foreign  vessel  upon  the  high  seas. 
But,  although  at  the  argument  two  of  the  judges,  Mr.  Justice  Colei-idge 
and  Mr.  Baron  Martin,  expressed  doubts  whether  parliament  could 
legislate  for  the  punishment  of  such  a  crime,  none  of  the  judges  except 
Mr.  Justice  Croiupton  denied  the  power;  Lord  Chief  Justice  Cockburn 
suggested  that  the  section  under  which  the  indictment  was  found,  taken 
in  connection  with  the  next  preceding  section,  relating  to  murder  or 
manslaughter  in  a  foreign  country,  which  was  in  terras  limited  to 
British  subjects,  must  be  equally  limited  ;  and  after  advisement  the 
opinion  of  the  court  was  put  upon  that  ground  only.  The  case  of  Nga 
Iloong  V.  The  Queen,  7  Cox  Crim.  Cas.  489,  was  decided  upon  like 
considerations.  Both  of  those  cases,  therefore,  merelj'  held  that  the 
whole  tenor  of  the  statute  in  question  showed  that  it  was  not  intended 
to  cover  cases  of  foreigners  sailing  on  the  high  seas  under  a  foreign 
flag  .  applying  the  same  rule  of  construction  as  the  Supreme  Court  of 
the  United  States  in  United  States  v.  Palmer,  3  Wheat.  631-634,  and 
United  States  v.  Pirates,  5  Wheat.  195-197.  Whether  an  explicit 
statute  of  the  state  where  a  murdered  man  dies  will  waiTant  the  in- 
dictment and  trial  of  his  murderer  if  found  within  the  jurisdiction  is 
quite  a  different  question. 

Neither  of  the  statutes  of  the  Commonwealth  upon  this  subject  has 
ever  contained  any  words  limiting  the  description  of  the  persons  by 
whom  the  offence  might  be  committed ;  and  the  existing  statute  clearly 
manifests  the  intention  of  the  legislature  to  punish  all  who  without 
legal  justification  cause  the  death  of  any  person  within  the  Common- 
wealth, wherever  the  first  wrongful  act  is  done,  or  of  whatever  country 
the  wrongdoer  is  a  citizen.  The  power  of  the  Commonwealth  to  punish 
the  causing  of  death  within  its  jurisdiction  is  wholly  independent  of  the 
power  of  the  United  States,  or  of  the  nation  to  which  the  vessel  be- 
longs, to  punish  the  inflicting  of  the  injury  on  the  high  seas.  And  upon 
full  consideration  the  court  is  unanimously  of  opinion  that  there  is 
nothing  in  the  Constitution  or  laws  of  the  United  States,  the  law  of 
nations,  or  the  Constitution  of  the  Commonwealth,  to  restrain  the  legis- 
lature from  enacting  such  a  statute. 

Exceptions  overruled. 


» 


418  CRIMES   AGAINST  THE  PERSON.  [CHAP.  XH. 


CHAPTER  XII. 
CRIMES  AGAINST  THE  PERSON. 


SECTION  I. 
General  Principles. 

1  Hale,  Pleas  of  the  Crown,  425.  To  make  up  the  crime  of  homicide 
or  murder  there  must  be  these  three  concurring  circumstances  :  — 

I.  The  part}'  must  be  killed.  Anciently  indeed  a  barbarous  assault 
with  an  intent  to  murder,  so  that  the  party  was  left  for  dead,  but  3'et 
recovered  again,  was  adjudged  murder  and  petit  treason  (15  E.  2,  Coron. 
383) ;  but  that  holds  not  now,  for  the  stroke  without  the  death  of  the 
party  stricken,  nor  the  death  without  the  stroke  or  other  violence 
makes  not  the  homicide  or  murder,  for  the  death  consummates  the 
crime.  .  .   . 

Now  what  shall  be  said  a  killing  and  death  within  the  year  and 
day?  .  .  . 

If  a  man,  either  by  working  upon  the  fanc}'  of  another  or  possibly  by 
harsh  or  unkind  usage,  puts  another  into  such  passion  of  grief  or  fear 
that  the  party  either  dies  suddenly,  or  contracts  some  disease  whereof 
he  dies,  though,  as  the  circumstances  of  the  case  may  be,  this  may  be 
murder  or  manslaughter  in  the  sight  of  God,  3'et  in  foro  humano  it 
cannot  come  under  the  judgment  of  felony,  because  no  external  act  of 
violence  was  offered  whereof  the  common  law  can  take  notice,  and 
secret  things  belong  to  God  ;  and  hence  it  was,  that  before  the  statute 
of  1  Jac.  cap.  12,  witchcraft  or  fascination  was  not  felony,  because  it 
wanted  a  trial,  though  some  constitutions  of  the  civil  law  make  it 
penal.  .  .  . 

There  are  several  ways  of  killing :  1 .  By  exposing  a  sick  or  weak  per- 
son or  infant  unto  the  cold  to  the  intent  to  destroy  him  (2  E.  3,  18  b), 
whereof  he  dieth.  2.  By  laying  an  impotent  person  abroad,  so  that  he 
ma}-  be  exposed  to  and  receive  mortal  harm  ;  as  laying  an  infant  in  an 
orchard  and  covering  it  with  leaves,  whereby  a  kite  strikes  it,  and  kills 
it.  6  Eliz.,  Crompt.  de  Pace  24 ;  Dalt.  ch.  93.  3.  B}'  imprisoning  a 
man  so  strictly  that  he  dies,  and  therefore  where  an}'  dies  in  gaol,  the 
coroner  ought  to  be  sent  for  to  enquire  the  manner  of  his  death.  4.  By 
starving  or  famine.  5.  By  wounding  or  blows.  6.  By  poisoning.  7. 
By  laying  noisome  and  poisonous  filth  at  a  man's  door,  to  the  intent  by 


SECT.  I.]  CRIMES   AGAINST   THE   PERSON.  419 

a  poisonous  air  to  poison  him  (Mr.  Dalton,  ch.  93,  out  of  Mr.  Coke's 
reading).     8.  By  strangling  or  sufTocation.     Morieytdi  millejigurae. 

A  man  infected  with  tlie  plague,  having  a  plague-sore  running  upon 
him,  goes  abroad  ;  this  is  made  felony  by  the  statute  of  1  Jac.  cap.  31,  but 
is  now  discontinued  ;  but  what  if  such  person  goes  abroad,  to  the  intent 
to  infect  another,  and  another  is  thereby  infected  and  dies?  Whether 
this  be  not  murder  by  the  common  law  might  be  a  question  ;  but  if  no 
such  intention  evidently  appears,  though  de  facto  by  his  conversation 
another  be  infected,  it  is  no  felony  by  the  common  law,  though  it  be  a 
great  misdemeanor  ;  and  the  reasons  are  :  1.  Because  it  is  hard  to  dis- 
cern whether  the  infection  arise  from  the  party  or  from  the  contagion 
of  the  air, —  it  is  God's  arrow  ;  and  2.  Nature  prompts  every  man,  in  what 
condition  soever,  to  preserve  himself,  which  cannot  be  well  without 
mutual  conversation.  3.  Contagious  diseases,  as  plague,  pestilential 
fevers,  small-pox,  &c.,  are  common  among  mankind  b}-  the  visitation  ; 
and  the  extension  of  capital  punishments  in  cases  of  this  nature  would 
multiply  severe  punishments  too  far,  and  give  too  great  latitude  and 
loose  to  severe  punishments, 

II.  The  second  consideration  that  is  common  both  to  murder  and 
manslaughter  is,  who  shall  be  said  a  person,  the  killing  of  whom  shall 
be  said  murder  or  manslaughter. 

If  a  woman  be  quick  or  great  with  child,  if  she  takes  or  another  gives 
her  any  potion  to  make  an  abortion,  or  if  a  man  strike  her,  whereby  the 
child  within  her  is  killed,  it  is  not  murder  nor  manslaughter  by  the  law 
of  England,  because  it  is  not  yet  in  renim  natura,  though  it  be  a  great 
crime,  and  by  the  judicial  law  of  Moses  was  punishable  with  death  ; 
nor  can  it  legally  be  made  known,  whether  it  were  killed  or  not.  22  Y,. 
3,  Coron.  263.  So  it  is,  if  after  such  child  were  born  alive,  and  baj)- 
tized,  and  after  die  of  the  stroke  given  to  the  mother,  this  is  not  homi- 
cide. I  E.  3,  23  b,  Coron.  146.  ...  If  a  man  kills  an  alien  enem}'- 
within  this  kingdom,  j-et  it  is  felon}*,  unless  it  be  in  the  heat  of  war,  and 
in  the  actual  exercise  thereof. 

III.  The  third  inquiry  is,  who  shall  be  said  a  person  killing.  .  .  . 

If  there  be  an  actual  forcing  of  a  man,  as  if  A.  by  force  take  the  arm 
of  B.  and  the  weapon  in  his  hand,  and  therewith  stabs  C.  whereof  he 
dies,  this  is  murder  in  A.  but  B.  is  not  guilty.  Dalt.  cap.  93,  p.  242. 
Plowd.  Com.  19  a.  But  if  it  be  only  a  moral  force,  as  by  threatening, 
duress,  or  imprisonment,  &c.,  this  excuseth  not. 

1  Hawkins,  Pleas  of  the  Crown,  ch.  16,  sect.  2.  Rape  is  an  offence 
in  having  unlawful  and  carnal  knowledge  of  a  woman  by  force  and 
against  her  will. 

Ibid.,  ch.  19.  Robbery  is  a  felonious  and  violent  taking  away  from 
the  person  of  another  goods  or  money  to  any  value,  putting  him  in  fear. 

Ibid.,  ch.  15,  sect.  1,  2.  Such  hurt  of  an}^  part  of  a  man's  body 
whereby  he  is  rendered  less  able,  in  fighting,  either  to  defend  himself 
or  to  annoy  his  adversary,  is  properly  a  maim.     And  therefore  the  cut- 


420  CASTELL  V.   BAMBRIDGE   AND   CORBET.  [CHAP.  XII. 

ting  off  or  disabling  or  weakening  a  man's  hand  or  finger,  or  striking 
out  his  eye  or  fore-tooth,  or  castrating  him,  are  said  to  be  maims  ;  but 
the  cutting  off  his  ear  or  nose,  &c.,  are  not  esteemed  maims,  because 
they  do  not  weaken,  but  only  disfigure  him. 

Ibid.,  ch.  15,  sect.  1,  2.  An  assault  is  an  attempt,  or  offer,  with 
force  and  violence,  to  do  a  corporal  hurt  to  another ;  as  b}'  striking  at 
him  with  or  without  a  weapon ;  or  presenting  a  gun  at  him  at  such  a 
distance  to  which  the  gun  will  carry ;  or  pointing  a  pitchfork  at  him, 
standing  within  the  reach  of  it ;  or  by  holding  up  one's  fist  at  him  ;  or 
by  any  other  such-like  act  done  in  an  augry,  threatening  manner :  and 
from  hence  it  clearly  follows  that  one  charged  with  an  assault  and 
batter}'  may  be  found  guilty  of  the  former,  and  yet  acquitted  of  the 
latter.  But  every  battery  includes  an  assault ;  therefore  on  an  indict- 
ment of  assault  and  battery  in  which  the  assault  is  ill  laid,  if  the  de- 
fendant be  found  guilty  of  the  battery  it  is  sufficient.  Notwithstanding 
many  ancient  opinions  to  the  contrary,  it  seems  agreed  at  this  day  that 
no  words  whatsoever  can  amount  to  an  assault. 

It  seems  that  any  injur^^  whatsoever,  be  it  never  so  small,  being 
actually  done  to  the  person  of  a  man  in  an  angry,  revengeful,  rude,  or 
insolent  manner,  as  by  spitting  in  his  face,  or  any  way  touching  him  in 
anger,  or  violently  jostling  him  out  of  the  way,  are  batteries  in  the  eye 
of  the  law. 


SECTION  II. 

The  Act  of  Personal  Injury. 

Pulton,  de  Pace,  122.  A  man  was  indicted  that  he  did  feloniously 
carr}'  his  own  father,  being  sicb,  against  his  will  in  a  frostie  and  cold 
time  from  one  town  to  another,  whereof  he  died ;  and  this  was  ad- 
judged felony  in  him.  For  in  this  case  the  son  had  a  meaning  that  his 
father's  life  should  be  shortened,  and  he  brought  to  his  death.^  - 


CASTELL,  WIDOW,  v.  BAMBRIDGE  AND  CORBET. 
Guildhall.     1730. 

[Reported  2  Strange,  854.] 

The  defendant  Bambridge,  having  been  prosecuted  on  the  report  of 
the  committee  of  the  House  of  Commons  for  the  murder  of  the  plain- 
tiflTs  husband,  who  was  a  prisoner  in  the  Fleet  under  the  custody  of 

1  S.  C.  2Ed.  3, 18  b.— Ed. 


SECT.  II.]  RKX  V.   McDANIEL.  421 

Bambridge  the  warden,  and  having  on  the  trial  been  honorably  acquit- 
ted upon  the  prosecutor's  own  evidence,  was  followed  with  an  appeal, 
to  which  Corbet,  who  on  the  cross-examination  appeared  to  be  a  ma- 
terial witness  for  Bambridge,  was  now  also  made  an  appellee.^ 

Upon  this  the  appeal  was  arraigned,  setting  forth  that  the  appellant's 
husband  was  a  prisoner  in  the  Fleet  under  the  custody  of  Bambridge 
the  warden,  who  made  an  assault  upon  him,  and  contrary  to  liis  will 
carried  him  to  the  house  of  Corbet,  a  victualling  house  within  the  Fleet, 
and  there  imprisoned  him,  where  one  White  then  lay  ill  of  the  small- 
pox, >vhich  Castell  had  never  had  ;  that  the  appellees  had  notice  of  this, 
and  were  desired  to  suffer  him  to  remove  to  another  place  in  the  prison, 
which  they  refused,  and  afterwards  Castell  fell  ill  of  that  distemper, 
and  died  in  Corbet's  house,  whereby,  the  count  concludes,  the  appellees 
were  guilty  of  his  murder. 

"Without  staying  for  a  copy  of  the  declaration  the  appellees  instanter 
pleaded  not  guilty,  and  their  plea  was  rehearsed  in  French,  and  issue 
joined. 

Upon  the  26th  of  January  the  trial  came  on  at  Guildhall  before  the 
Chief  Justice  [Raymond].  After  a  long  examination  the  Chief  Justice 
directed  the  jury  that  if  they  believed  Castell  was  carried  to  Corbet's 
against  his  consent,  and  was  there  so  detained,  that  Bambridge  and 
Corbet  knew  the  small-pox  was  there,  that  Castell  had  not  had  it,  but 
feared  it,  and  desired  to  be  removed,  or  not  be  carried  there  at  all, 
that  he  caught  the  small-pox  of  White,  and  died  thereof,  —  then  the 
appellees  would  be  guilty  of  murder ;  but  if  any  one  of  these  facts  were 
not  proved  to  the  satisfaction  of  the  jury,  they  ought  to  be  acquitted. 
And  there  being  no  pretence  to  charge  either  of  the  appellees,  the  Jury 
brought  them  in  not  guilty.'' 


REX  V.  McDANIEL. 
Crown  Case  Reserved.     1756. 

[Reported  Leach  {ith  ed.),  44.] 

At  the  Old  Bailey,  January  Session,  1754,  one  Joshua  Kidden  was 
tried  before  Mr.  Justice  Foster,  for  robbing  Mary  Jones,  widow,  on 
the  highway,  of  one  guinea,  a  half  crown,  and  two  shillings  and  six- 

1  Part  of  the  case,  involving  questions  of  procedure  only,  is  omitted. 

2  See  Rex  v.  Hnggins,  2  Ld.  llaym.  1574,  2  Strange,  882.  In  this  case  Lord  Chief 
Justice  TJavmond  said  :  "  There  is  no  particular  way  of  killing  another  that  is  neces- 
sary to  constitute  a  murder  ;  but  the  committing  of  murder  is  as  various  as  the  several 
ways  of  putting  an  end  to  life.  In  the  case  of  a  prisoner  there  is  no  occasion  for  an 
actual  stroke  :  tlie  restraining  him  by  force,  and  killing  him  by  ill-usage,  is  enough  to 
constitute  this  offence.  All  the  authors  who  speak  of  this  species  of  murder  describe 
it  by  a  general  expression  per  dure  garde  de  ses  gardens."  — Ed. 


422  REX   V.   McDANIEL.  [CHAP.  XII. 

pence.  The  prosecutrix  swore  ver}-  positive!}'  to  the  person  of  the 
prisoner  and  to  the  circumstances  of  the  robbery,  in  which  she  was 
confirmed  by  one  Berr}'.  The  prisoner,  on  the  evidence  of  these  two 
witnesses,  was  convicted  and  executed ;  and  on  the  first  of  March  fol- 
lowing the  reward  of  forty  pounds,  given  by  4  &  5  Will,  and  Mary, 
c.  8,  to  those  who  shall  convict  a  highway  robber,  was  divided  between 
the  prosecutrix,  Mary  Jones,  John  Berry,  Stephen  Macdaniel,  and 
Thomas  Cooper.  The  history  of  this  prosecution  \a.y  concealed  in  the 
minds  of  its  fabricators  until  the  9th  of  August,  1754,  when  the  high 
constable  of  the  hundred  of  Blackheath  having  taken  up  one  Blee  on 
suspicion  of  being  a  thief,  it  was  discovered  to  have  been  a  conspiracy 
and  contrivance  to  obtain  the  reward. 

Diligent  search  was  accordingly  made  to  apprehend  the  miscreants 
concerned  in  this  extraordiuar}-  transaction  ;  and  at  the  Old  Bailey  in 
June  Session,  1756,  Stephen  Macdaniel,  John  Berry,  and  Mary  Jones 
were  indicted  before  Mr.  Justice  Foster,  present  Mr.  Baron  Smythe, 
for  the  wilful  murder  of  Joshua  Kidden,  in  maliciously  causing  him  to 
be  unjustly  apprehended,  falsely  accused,  tried,  convicted,  and  exe- 
cuted, well  knowing  him  to  be  innocent  of  the  fact  laid  to  his  charge, 
with  an  intent  to  share  to  themselves  the  reward,  etc.  The  prisoners 
were  convicted,  upon  the  clearest  and  most  satisfactory  evidence,  of  the 
fact,  and  a  scene  of  depravit}'  was  disclosed  as  horrid  as  it  was  unex- 
ampled. The  judgment,  however,  was  respited,  upon  a  doubt  whether 
an  indictment  for  murder  would  lie  in  this  case.  The  special  circum- 
stances wore  accordingl}'  entered  upon  the  record,  together  with  an 
additional  finding  of  the  jur}',  "  That  Justice  Hall,  in  the  Old  Bailc}',  is 
situated  within  the  count}'  of  the  city  of  London  ;  and  that  felonies  com- 
mitted in  the  County  of  Middlesex  have  from  time  immemorial  been 
accustomed  to  be  tried  there,"  in  order  that  the  point  of  law  might 
be  more  fully  considered  upon  motion  in  arrest  of  judgment.  But 
Sir  Robert  Henley,  the  Attorney-General,  declined  to  argue  it,  and 
the  prisoners  were  at  a  subsequent  session  discharged  from  that 
indictment. 

Sir  William  Blackstone,  however,  says  that  there  were  grounds  to 
believe  it  was  not  given  up  from  any  apprehension  that  the  point  was 
not  maintainable,  but  from  other  prudential  reasons.^ 

^  "The  author  has  heard  Lord  Mansfield,  C.  J.,  make  the  same  observation,  and 
say  that  the  opinions  of  several  of  the  judges  at  that  time,  and  his  own,  were  strongly 
in  support  of  the  indictment."     1  East  F.  C,  333  n.  —  Ed. 


SECT.  II.]  REGINA  V.   POCOCK.  423 

REGINA  V.   POCOCK, 
Queen's  Bench.     1851. 

[Reported  5  Cox  C.  C.  172.] 

This  was  a  rule  to  quash  a  coroner's  inquisition  which  had  been 
removed  into  this  court  by  certiorari.  Tlie  inquisition  alleged  that  the 
dclVudants  were  the  trustees  of  a  public  road  under  an  act  of  Parlia- 
ment;  that  it  was  their  duty  to  contract  for  the  due  reparation  of  the 
said  road  ;  that  they  feloniously  did  neglect  and  omit  to  contract  for 
the  repair  of  the  same,  whereby  it  became  very  miry,  ruinous,  deep, 
V)r()ken,  and  in  great  decay  ;  and  that  a  cart,  which  the  deceased  was 
driving  along  the  road,  fell  into  a  hole  in  the  road,  and  by  reason  thereof 
the  deceased  was  thrown  out,  and  sustained  the  injuries  of  which  he 
afterwards  died. 

C/iarnock  showed  cause.  — This  case  is  not  distinguishable  from 
those  of  persons  who  have  the  charge  of  machinery  at  mines,  of  sig- 
nals, or  locomotives  on  railways,  and  the  like ;  and  there  are  many 
precedents  of  indictments  for  manslaughter  in  such  cases  where  death 
lias  been  occasioned  by  a  neglect  of  dut\-  on  the  part  of  the  persons  so 
intrusted.  R  v.  Barrett,  2  Car.  &  K.  343  ;  R.  v.  Haines,  ib.,  368  ;  R. 
V.  Gregory,  5  B.  &  Ad.  555.  Here  a  public  duty  was  cast  upon  the 
trustees,  and  they  were  authorized  to  raise  money  b}'  rates  for  the  pur- 
pose ;  and  if  their  neglect  of  duty  has  caused  the  death  of  another, 
they  are  guilt}'  of  manslaughter. 

HayeSy  contra,  was  not  called  upon. 

Loud  Campbell,  C.  J.  The  cases  cited  show  a  personal  duty, 
the  neglect  of  which  has  directly  caused  death;  and,  no  doubt,  where 
that  is  the  case,  a  conviction  of  manslaughter  is  right.  But  how  do 
those  apply  to  trustees  of  a  highway?  How  can  it  be  said  that  their 
omission  to  raise  a  rate,  or  to  contract  for  the  reparation  of  the  road, 
directly  causes  the  death?  If  so,  the  surveyors  or  the  inhabitants  of 
the  parish  would  be  equally  guilty  of  manslaughter ;  for  the  law  casts 
upon  them  the  duty  of  keeping  the  roads  in  repair.  To  uphold  the 
inquisition  would  be  to  extend  the  criminal  law  in  a  most  alarming 
manner,  for  which  there  is  no  principle  or  precedent. 

PArrKSON,  J.     This  is  really  too  extravagant. 

Wkjhtman,  J.  concurred. 

F^KLK,  J.  In  all  the  cases  of  indictment  for  manslaughter,  where 
the  death  has  been  occasioned  by  omission  to  discharge  a  dut}',  it  will 
be  fotind  that  the  duty  was  one  connected  with  life,  so  that  the  ordi- 
nar}-  consequence  of  neglecting  it  would  be  death.  Such  are  the  cases 
of  machiner}'  at  mines,  of  engine-drivers,  or  the  omission  to  supply 
food  to  helpless  infants.  Inquisition  quashed. 


424  EEGINA   V.   CONDE.  [CHAP.  XIL 

REGINA   y.    GREENWOOD. 
Liverpool  Assizes.     1857. 

[Reported  7  Cox  C.  C.  404.] 

The  prisoner  was  indicted  for  murder  and  rape  on  a  child  under  ten. 

It  appeared  from  the  evidence  that  the  prisoner  had  connection  with 
the  deceased,  and  that  it  was  afterwards  discovered  she  had  the  venereal 
disease. 

Jfernley  and  (7.  H.  Hopwood,  for  the  prosecution. 

Cohhett,  for  the  prisoner. 

WiGHTMAN,  J.,  told  the  jury  that  the  malice  which  constitutes  mur- 
der might  be  either  express  or  implied.  There  was  no  pretence  in  this 
ease  that  there  was  any  malice  other  than  what  might  be  implied  by 
law.    There  were  five  questions  for  them  to  consider. 

First,  had  the  prisoner  connection  with  her? 

Secondly,  did  she  die  therefrom? 

Thirdly,  had  she  the  venereal  disease? 

Fourthl}',  did  she  die  from  its  effects? 

Fifthl}',  did  she  get  it  from  the  prisoner? 

If  they  were  of  opinion  that  the  prisoner  had  connection  with  her, 
and  she  died  from  its  effects,  then  that  act  being,  under  the  circum- 
stances of  this  case,  a  felon}^  in  point  of  law,  this  would,  of  itself,  be 
such  malice  as  would  justify  them  in  finding  him  guilt}'  of  murder. 

The  jury  retired,  and,  after  some  time,  returned  into  court  saying  that 
they  were  satisfied  that  he  had  connection,  and  that  her  death  resulted 
therefrom,  but  were  not  agreed  as  to  finding  him  guilty  of  murder. 

WiGHTMAN,  J.,  told  them  that,  under  these  circumstances,  it  was 
open  to  them  to  find  the  prisoner  guilt}'  of  manslaughter,  and  that  they 
might  ignore  the  doctrine  of  constructive  malice  if  they  thought  fit. 

The  jury  found  a  verdict  of  manslaughter,  and  the  prisoner  was 
ordered  to  be  kept  in  penal  servitude  for  life. 


REGINA  V.  CONDE. 
Central  Criminal  Court.     1867. 

[Reported  10  Cox  C.  C.  547.] 

John  George  Conde  and  Mary  Conde  were  indicted  for  and 
charged,  upon  the  coroner's  inquisition,  with  the  wilful  murder  oi 
William  Conde.  i 

George  Charles  Kernott,  licentiate  of  the  Apothecaries'  Company, 
\roved  that  the  deceased  died  from  starvation  ;  death,  no  doubt,  having 
been  accelerated  b}'  beatings. 

^  Most  of  the  evidence  presented  in  the  case  has  been  omitted. 


SECT.  II.]  REGINA   V.   TOWERS.  425 

Channell,  B.,  in  summing  up  the  case  to  the  jury  directed  them 
as  follows  :  If  the  prisoners  or  either  of  them  wilfuil}'  withheld  neces- 
sary food  from  the  deceased,  with  a  wilful  determination,  by  withhold- 
ing sustenance  which  was  requisite,  to  cause  his  death,  then  the  part}' 
so  withliolding  such  food  is  guilty  of  murder.  If,  however,  the  prisoners 
had  the  means  to  supply  necessaries,  the  want  of  which  had  led  to 
the  death  of  the  deceased,  and  having  the  means  to  supply'  such  neces- 
saries, negligently  though  not  wilfully  withheld  food  which  if  admin- 
istered would  have  sustained  life,  and  so  caused  the  death  of  the 
deceased,  then  that  would  amount  to  the  crime  of  manslaughter  in 
the  person  so  withholding  the  food. 

Mary  Conde  guilty  of  manslaughter. 
John  George  Conde  not  guilty. 


REGINA  V.  TOWERS. 
Carlisle  Assizes.     1874. 

\Eeforted  12  Cox  C.  C.  530] 

"Wilson  Towers  was  charged  with  the  manslaughter  of  John  Heth- 
erington  at  Castlesowerbj-  on  the  Gth  of  September,  1873. 

The  prisoner,  who  had  been  drinking  on  the  4th  of  August,  went 
into  a  public-house  at  New  Yeat  near  Castlesowerbj',  kept  bj'  the 
mother  of  the  deceased,  and  there  saw  a  girl  called  Fanny  Glaister 
nursing  the  deceased  child,  who  was  then  only  about  four  months 
and  a  half  old,  having  been  born  on  the  20th  of  March,  1873.  The 
prisoner,  who  appeared  to  have  had  some  grievance  against  Fanny 
Glaister  about  her  hitting  one  of  his  children,  immediatel}-  on  entering 
the  public-house  went  straight  up  to  where  she  was,  took  her  by  the 
hair  of  the  head,  and  hit  her.  She  screamed  loudly,  and  this  so 
frightened  the  infant  that  it  became  black  in  the  face  ;  and  ever  since 
that  da3'  up  to  its  death  it  had  convulsions  and  was  ailing  generally 
from  a  shock  to  the  nervous  system.  The  child  was  previously  a  very 
healthy  one.^ 

Henry  submitted  that  there  was  no  case  to  go  to  the  jury,  but 
Denman,  J.,  said,  that  he  should  leave  it  to  the  jury  to  say  whether 
the  death  of  the  child  was  caused  bj^  the  unlawful  act  of  the  prisoner, 
or  whether  it  was  not  so  indirect  as  to  be  in  the  nature  of  accident. 
This  case  was  different  from  other  cases  of  manslaughter,  for  here 
the  child  was  not  a  rational  agent,  and  it  was  so  connected  with  the 
girl  that  an  injury  to  the  girl  became  almost  in  itself  an  injury  to 
the  child. 

Denman,  J.,  in  summing  up,  said  it  was  a  very  unusual  case,  and 
it  was  very  unusual  indeed  to  find  a  case  in  which  the^  got  practically 

*  The  evidence  is  omitted. 


426  REGINA  V.   TOWERS.  [CHAP.  XII. 

no  assistance  from  previousl}'  decided  cases.  There  was  no  offence 
known  to  our  law  so  various  in  its  circumstances  and  so  various  in 
the  considerations  applicable  to  it  as  that  of  manslaughter.  It  might 
be  that  in  this  case,  unusual  as  it  was,  on  the  principle  of  common  law 
manslaughter  had  been  committed  by  the  prisoner.  The  prisoner  com- 
mitted an  assault  on  the  girl,  which  is  an  unlawful  act,  and  if  that  act, 
in  their  judgment,  caused  the  death  of  the  child,  i.  e.,  that  the  child 
would  not  have  died  but  for  that  assault,  the}'  might  find  the  prisoner 
guilt}'  of  manslaughter.  He  called  their  attention  to  some  considera- 
tions that  bore  some  analogy  to  this  case.  This  was  one  of  the  new 
cases  to  which  they  had  to  apply  old  principles  of  law.  It  was  a  great 
advantage  that  it  was  to  be  settled  by  a  jury  and  not  by  a  judge.  If 
he  were  to  say,  as  a  conclusion  of  law,  that  murder  could  not  have 
been  caused  hy  such  an  act  as  this,  he  might  have  been  laying  down  a 
dangerous  precedent  for  the  future ;  for  to  commit  a  murder  a  man 
might  do  the  very  same  thing  this  man  had  done.  The}-  could  not 
commit  murder  upon  a  grown-up  person  by  using  language  so  strong 
or  so  violent  as  to  cause  that  person  to  die.  Therefore  mere  intimida- 
tion, causing  a  person  to  die  from  fright  by  working  upon  his  fanc}', 
was  not  murder.  But  there  were  eases  in  which  intimidations  had 
been  held  to  be  murder.  If  for  instance  four  or  five  persons  were  to 
stand  round  a  man  and  so  threaten  him  and  frighten  him  as  to  make 
him  believe  that  his  life  was  in  danger,  and  he  were  to  back  away  from 
them  and  tumble  over  a  precipice  to  avoid  them,  then  murder  would 
have  been  committed.  Then  did  or  did  not  this  principle  of  law  apply 
to  the  case  of  a  child  of  such  tender  years  as  the  child  in  question  ? 
For  the  purposes  of  the  case  he  would  assume  that  it  did  not;  for  the 
purposes  of  to-da}'  he  should  assume  that  the  law  about  working  upon 
people  by  fright  did  not  apply  to  the  case  of  a  child  of  such  tender 
years  as  this.  Then  arose  the  question,  which  would  be  for  them  to 
decide,  whether  this  death  was  directly  the  result  of  the  prisoner's  un- 
lawful act,  whether  they  thought  that  the  prisoner  might  be  held  to  be 
the  actual  cause  of  the  child's  death,  or  whether  they  were  left  in  doubt 
upon  that  'upon  all  the  circumstances  of  the  case.  After  referring  to 
the  supposition  that  the  convulsions  were  brought  on  owing  to  the  child 
teething  he  said  that  even  though  the  teething  might  have  had  some- 
thing to  do  with  it,  yet  if  the  man's  act  brought  on  the  convulsions,  or 
brought  them  to  a  more  dangerous  extent,  so  that  death  would  not 
have  resulted  otherwise,  then  it  would  be  manslaughter.  If,  therefore, 
the  jury  thought  that  the  act  of  the  prisoner  in  assaulting  the  girl  was 
entirely  unconnected  with  it,  that  the  death  was  not  caused  by  it,  but 
b}'  a  combination  of  circumstances,  it  would  be  accidental  death  and 
not  manslaughter.^  N'ot  guilty. 

1  Compare  Reg.  v.  Mnrton,  3  F.  &  F.  492.  In  charging  the  jury  in  that  case 
Byles,  J.,  said  :  — 

Within  a  few  hours  of  her  death  the  woman  said  that  her  husband  had  caused  her 
death,  but  to  some  of  the  witnesses  she  said  that  he  had  "  broken  her  heart,"  and 


SECT.  II.]  REG  IN  A   V.   UALLIDAY.  421 


REGINA  V.   UALLIDAY. 
CuowN  Case  Reskuved.     1889. 
[Reported  61  Law  Times  Reports,  701.] 

Case  stated  for  the  opinion  of  the  Court  for  the  Consideration  of 
Crown  Cases  Reserved  by  the  Chairman  of  the  Court  of  Quarter  Ses- 
sions of  the  Count}'  Talatine  of  Duihaui :  — 

At  the  Michaehuus  C^uarter  Sessions  1881)  of  the  county  of  Durham, 
the  prisoner  James  Halliday  was  tried  before  me  on  an  indictment 
charging  him  with  liaving  on  the  19th  June  1889  wilfully  and  maliciously 
inflicted  grievous  bodily  harm  on  Mary  Jane  Halliday,  and  (in  a  second 
count)  with  having  assaulted  her,  thereby  occasioning  her  actual  bodily 
harm. 

It  was  proved  that  Mary  Ann  [Jane?]  Halliday  was  prisoner's  wife, 
that  he  had  been  frequently'  drunk  during  the  twelve  months  preceding 
the  day  on  which  the  offence  was  committed,  that  while  drunk  his  lan- 
guage was  very  violent  and  abusive,  that  he  had  threatened  her  fre- 
quently, and  that  in  consequence  of  his  threats  she  had  had  to  leave 
home  and  go  to  a  neighbor's  house  about  a  week  before  the  last- 
mentioned  dav,  but  he  had  never  actually  used  violence  towards  her. 
On  the  day  in  question,  in  consequence  of  a  request  made  to  her  by 
Margaret  Ann  Halliday  (the  daughter  of  prosecutrix  and  prisoner),  the 
prosecutrix  went  home  and  found  prisoner  ver^'  drunk ;  the  son  of  the 
prisoner  and  prosecutrix  was  also  there,  and  whilst  he  remained  prisoner 
was  quiet,  but  the  son  left  the  house  after  a  short  interval  and  then 
prisoner  fastened  the  door  and  windows  and  said  to  prosecutrix,  "  Now, 
yoti  b ,  I'll  talk  to  you  ;  "  also  calling  her  bad  names  and  ordering 

that  being  turned  out  of  her  home  had  caused  her  death.  Taken  all  together  these 
dving  declarations  are,  perhaps,  more  in  favor  of  than  against  the  prisoner ;  for  if  the 
woman  died  of  a  broken  heart,  and  from  anguisii  at  being  turned  out  of  her  home, 
it  would  not  be  a  ca^e  of  manslaughter.  To  coustitute  that  crime  there  mu.st  have 
been  some  physical  or  corporeal  injury,  negative  or  positive,  as  a  blow,  or  the  depri- 
vation of  necessaries,  or  the  like.  Almost  the  last  thing  she  had  said  was,  "That 
villain  has  broken  my  heart."  There  was,  however,  violence,  which,  according  to  the 
evidence,  might  have  accelerated  her  death.  ...  It  is  clearly  the  law  that  if  the 
death  was  accelerated  by  violence,  so  that  death  happened  sooner  than  it  otherwise 
would  have  done,  that  is  homicide.  It  is  not  murder,  unless  death  was  intended,  but 
it  is  manslaughter  if  the  violence  hastened  the  death.  Mere  unkind  or  unhusbandlike 
usape  is  not  enough,  and  there  must  be  violence,  physical  or  corporeal.  If  the  being 
treated  so  and  turned  out  of  her  home  had  preyed  upon  her  spirits  and  broken  her 
heart,  it  is  not  a  ca.se  of  manslaughter,  and  human  tribunals  can  take  no  cognizance 
of  it  as  a  criminal  offence.  The  question,  then,  for  you  lies  in  a  very  narrow  compass 
indeed.  The  question  is,  was  the  violence  used  towards  the  deceased  on  the  kitiiieu 
floor  on  that  night  the  cau.se  of  her  death  in  this  sen.<<e  —  that  it  hastened  her  tleath? 
That  is,  did  it  cause  her  to  die  sooner  than  she  otherwise  would  have  died?  Did  the 
blows,  or  the  throwing  on  the  floor,  or  both  conjointly,  hasten  her  death,  and  causo 
her  to  die  soouer  than  she  otherwise  would  have  done?  If  so  you  should  find  the 
prisoner  guilty  ;  if  not,  acquit  him.  —  Ed. 


428  EEGINA   V.   HALLIDAY.  [CHAP.  XIL 

her  and  the  daughter  off  to  bed.  Prosecutrix  was  in  an  inner  room, 
and  prisoner  shortly  afterwards  called  out  to  her,  asking  if  she  was  in 
bed.  Prosecutrix  said  she  was  not,  whereupon  prisoner  exclaimed, 
"I'll  make  you  so  that  you  can't  go  to  bed,"  and  whilst  staggering 
towards  the  inner  room  he  knocked  himself  against  a  closet  in  the 
outer  room.  Prosecutrix  was  afraid  he  would  blame  her  for  that,  and 
ran  to  the  window,  took  the  hasp  off  it  and  opened  it  in  order  to  get 
out,  and  had  got  one  leg  out  when  their  daughter  caught  hold  of  her 
and  held  her.  Prisoner  by  this  time  had  got  into  the  room  where  pros- 
ecutrix was,  and  was  within  reach  of  her,  and  was  calling  out  "  Let 

the  b go,"  whereupon  the  daughter  left  hold  and  prosecutrix  fell 

into  the  street  and  broke  her  leg.  Both  mother  and  daughter  were 
very  frightened.  Whilst  prosecutrix  was  lying  on  the  flags  beneath, 
prisoner  jeered  at  her  from  the  window,  saying  it  served  her  right,  and 
he  made  no  attempt  to  help  her. 

On  these  facts  I  directed  the  jury  that,  if  the  prosecutrix's  apprehen- 
sion was  well  grounded,  taking  into  account  the  circumstances  in  which 
she  was  placed,  and  if  getting  out  of  the  window  was  an  act  such  as 
under  the  circumstances  a  woman  might  reasonably'  be  led  to  take,  they 
should  find  the  prisoner  guilty.  The  jury  returned  a  general  verdict  of 
guilt}'  on  the  whole  indictment,  and  I  sentenced  him  to  six  months 
imprisonment  with  hard  labor.  Defendant  is  in  her  Majesty's  prison 
at  Durham  undergoing  the  sentence. 

The  question  for  the  court  is,  whether  or  not  the  prisoner  was  rightly 
convicted. 

No  one  appeared  on  behalf  of  the  prisoner. 

J.  L.  'Walton  (with  him  Simey),  on  behalf  of  the  prosecution,  sub- 
mitted that  the  term  "inflict"  is  convertible  with  the  term  "  cause  to 
feel,"  and  means  in  sect.  20  of  24  &  25  Vict.  c.  100,  to  be  responsible 
for  acts  that  cause  harm  to  any  person.  That  construction  had  been 
placed  upon  the  word  in  sect.  18  of  the  Act,  and  a  charge  of  felony 
sustained  upon  points  very  similar  to  those  in  the  present  case ;  and  it 
had  been  held  that  the  words  "  cause"  and  "  inflict"  were  convertible 
terms.  There  was  a  distinction  between  this  case  and  Reg.  v.  Martin 
(8  Q.  B.  Div.  54;  14  Cox  C.  C.  633).  For  there  the  persons  were 
injured  by  the  physical  act  of  the  prisoner,  and  without  any  act  of  their 
own,  while  here  the  jump  from  the  window  was  the  voluntar}'  act  of  the 
woman.  But  a  man  did  not  the  less  cause  a  thing  because  he  inflicted 
it ;  and  it  was  clear  that,  if  the  woman  had  died,  the  prisoner  could 
have  been  convicted  of  manslaughter,  if  not  of  murder.  There  were  a 
series  of  authorities,  commencing  with  Rex  v.  Evans  (1  Russ.  on 
Crimes,  4th  ed.  p.  656),  as  to  the  responsibilitj'  of  a  person  who  causes 
another  person  to  take  upon  himself  conduct  which  causes  injury.  In 
that  case.  Heath,  Gibbs,  and  Ba3'ley,  JJ.,  were  of  opinion  that,  if  a 
woman's  death  had  been  occasioned  parti}'  by  her  husband's  blows  and 
partly  by  falling  from  a  window  out  of  which  she  threw  herself,  j'et,  if 
she  was  constrained  by  her  husband's  threats  of  further  violence,  and 


SECT.  II.]  BEGIN  A  V.   HALLIDAY.  429 

from  a  well-grounded  apprehension  of  bis  doing  such  further  violence 
as  would  endanger  her  life,  he  was  answerable  for  the  consequences  of 
the  fall  as  much  as  if  he  had  thrown  her  out  of  the  window  himself. 
In  Kex  V.  Hickman  (o  C.  &.  P.  151)  a  prisoner  was  held  guilty  of  mur- 
der who  had  charged  another  person  on  horseback  and  so  frightened 
him  that  he  spurred  his  horse,  and  in  consequence  the  horse  fell  and 
ilie  man  was  killed.  In  Reg.  v.  Pitts  (C.  &  Mars.  284),  the  prisoner 
was  cliarged  with  the  murder  of  a  man  whose  body  was  f(Hind  in  a 
canal,  there  being  signs  of  violence  and  a  struggle  on  the  banks  of  the 
canal,  and  Erskine,  J.,  told  the  jury  that  a  man  might  throw  himself  into 
a  river  under  such  circumstances  as  rendered  it  not  a  voluntary'  act,  by 
reason  of  force  either  applied  to  the  bod}'  or  the  mind.  It  was  there- 
fore immaterial  whether  the  physical  act  of  the  prisoner  operates  on  the 
body  or  mind,  if  injury  is  caused ;  and  here  there  was  ample  evidence 
tliat  the  woman  got  out  of  the  window  in  consequence  of  her  husband's 
threats  operating  upon  her  mind  so  as  to  cause  her  to  fear  immediate 
danger. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  the  conviction  in 
this  case  is  correct,  and  that  the  sentence  should  be  affirmed.  The 
principle  seems  to  me  to  be  laid  down  quite  fully  in  Reg.  v.  Martin 
(8  Q.  B.  Div.  54;  14  Cox  C.  C.  633).  There  this  court  held  that  a 
man  who  had  either  taken  advantage  of  or  had  created  a  panic  in  a 
theatre,  and  had  obstructed  a  passage,  and  rendered  it  difficult  to  get 
out  of  the  theatre,  in  consequence  of  which  a  number  of  people  were 
crushed,  was  answerable  for  the  consequences  of  what  he  had  done. 
Here  the  woman  came  b}'  her  mischief  by  getting  out  of  the  window  — 
I  use  a  vague  word  on  purpose  —  and  in  her  fall  broke  her  leg.  Now 
that  might  have  been  caused  by  an  act  which  was  done  accidentally  or 
deliberately,  in  which  case  the  prisoner  would  not  have  been  guilty.  It 
appears  from  the  case,  however,  that  the  prisoner  had  threatened  his 
wife  more  than  once,  and  that  on  this  occasion  he  came  home  drunk, 
and  used  words  which  amounted  to  a  threat  against  her  life,  saying, 
"  I  '11  make  you  so  that  you  can't  go  to  bed ;  "  that  she,  rushing  to  the 
window,  got  half  out  of  the  window,  when  she  was  restrained  b}'  her 
daughter.  The  prisoner  threatened  the  daughter,  who  let  go,  and  her 
mother  fell.  It  is  suggested  to  me  by  my  learned  brother  that,  sup- 
posing the  prisoner  had  struck  his  daughter's  arm  without  hurting  her, 
but  sufficientl}'  to  cause  her  to  let  go,  and  she  had  let  her  mother  fall, 
could  any  one  doubt  but  that  that  would  be  the  same  thing  as  if  he  had 
pushed  her  out  himself  ?  If  a  man  creates  in  another  man's  mind  an 
immediate  sense  of  danger  which  causes  such  person  to  trj*  to  escape, 
and  in  so  doing  he  injures  himself,  the  person  who  creates  such  a  state 
of  mind  is  responsible  for  the  injuries  which  result.  I  think  that  in 
this  case  there  was  abundant  evidence  that  there  was  a  sense  of  imme- 
diate danger  in  the  mind  of  the  woman  caused  by  the  acts  of  the  pris- 
oner, and  that  her  injuries  resulted  from  what  such  sense  of  danger 
caused  her  to  do.  I  am  therefore  of  opinion  that  the  prisoner  was 
rightly  convicted,  and  that  this  conviction  must  be  affirmed. 


430  HENDRICKSON   V.    COMMONWEALTH.  [CHAP.  XIL 

Mathew,  J.  I  am  of  the  same  opinion.  The  jury  must  be  taken 
to  have  inferred  that  the  act  of  escaping  from  the  window  and  the  act 
of  the  daughter  were  the  consequences  of  the  prisoner's  acts  ;  and  I  am 
of  opinion  that  he  is  liable  for  the  consequences  of  such  acts. 

Cave,  Day,  and  Smith,  JJ.,  concurred.^ 

Conviction  ajffii'med. 


HENDRICKSON  v.  COMMONWEALTH. 
Court  of  Appeals  of  Kentucky.     1887. 

{Reported  85  Kentucky,  281.] 

Judge  Lewis  delivered  the  opinion  of  the  court :  — 

Under  an  indictment  for  the  murder  of  his  wife,  appellant  was  con- 
victed of  manslaughter. 

From  the  testimony'  of  a  daughter  of  the  deceased  and  step-daughter 
of  appellant,  the  only  person  present  at  the  time,  it  appears  that  a 
difficult}'  took  place  at  their  residence  at  night  after  they  had  retired 
to  bed,  in  the  winter  of  1885-86,  and,  in  the  language  of  the  witness, 
occurred  as  follows  :  "  The  sow  rooted  open  the  door  of  the  cabin,  and 
they  (her  mother  and  father)  fell  out  over  driving  her  out,  and  he 
choked,  beat,  scratched,  and  struck  her,  and  she  knocked  him  down 
with  the  iron  shovel,  and  got  on  him,  choked  him,  and  asked  him  how 
he  felt ;  and  he  started  towards  his  breeches  and  said  :  '  If  I  had  m^' 
knife  —  I  will  get  my  knife  and  I'll  cut  3'our  dog  gon'd  throat; '  and 
that  she  ran  out  at  the  door  and  did  not  return  that  night ;  that  he 
shut  the  door  after  her  and  propped  it  with  a  stick  of  wood  and  went 
to  bed."  She  further  stated  that  next  morning  she  went  to  look  for 
her  mother  and  found  her  lying  in  the  snow  dead,  and  when  she  started 
appellant  told  her  to  take  her  n)other's  shoes  and  stockings^ 

The  statement  to  the  jury,  made  by  appellant  himself,  is,  that  the 
deceased  commenced  the  fight,  getting  him  down  on  the  floor,  when  he 
choked  and  bit  her,  and  she  then  knocked  him  down  witli  an  iron 
shovel,  and  got  on  and  choked  him,  and  then  jumped  up  and  ran  out 
of  the  door,  saying  she  would  have  him  arrested  and  put  in  jail.  He, 
however,  admits  he  .said  to  her  that  if  he  had  his  knife  he  would  cut 
her,  and  started  for  his  breeches. 

From  the  testimony  of  a  witness  it  appears  that  the  place  where  the 
deceased  lay  was  within  about  one  hundred  yards  of  his  house,  and 
about  half  mile  of  her  residence,  and  that  in  going  to  the  place  where 
she  was  found  she  had  passed  by  the  gate  of  another  person,  and 

^  In  a  similar  case  Alderson,  B.,  said :  "  I  do  not  think  it  will  be  snfficient  to 
prove  that  she  jumped  from  the  window  to  escape  his  violence.  You  must  go  further 
than  that,  and  satisfy  the  jury  that  he  intended  at  the  time  to  make  her  jump  out." 
Reg.  V.  Donovan,  4  Cox  C.  C.  401.  — Ed. 


SECT.  II.]  HENDRICKSON   V.   COMMONWEALTH.  431 

within  twenty  feet  of  his  house,  which  was  two  hundred  and  fifty  3-ard3 
nearer  her  own  residence  than  was  the  place  where  she  died.  When 
found  she  was  lying  on  her  face  dead  and  badly  frozen,  the  weather 
being  extremely  cold,  and  where  she  lay  were  signs  of  stirring  in  the 
enow,  which  was  about  eighteen  inches  deep.  When  she  left  her 
residence  she  was  barefooted  and  had  on  ver^*  little  clothing,  and  along 
the  route  she  took,  which  led  through  briers,  there  were  small  quanti- 
ties of  blood  and  fragments  of  clothing  that  had  been  torn  off  by  the 
briers  ;  and  at  another  place  she  had  struck  her  ankle  against  the  end 
of  a  log  and  it  bled  freely.  The  witnesses  testify  that  there  were 
scratches  on  each  side  of  her  neck,  and  finger-prints  on  her  throat,  and 
prints  of  teeth  on  her  left  arm  and  back  of  her  hands,  and  her  legs 
from  knees  down  were  lacerated  by  the  briers.  According  to  the  tes- 
timony of  a  physician,  she  was  eight  months  and  one  week  gone  in 
pregnancy ;  but  she  had  no  wound,  bruise,  or  other  mark  of  violence 
that  could  have  produced  death.  Fie  also  testified  that  appellant  was 
badly  crippled  and  paralyzed  in  one  arm,  and  that  on  the  day  of  his 
examining  trial  he  had  a  considerable  bruise  about  his  face  and  a  bad- 
looking  one  about  the  eye. 

There  is  evidence  that  the  deceased  was  a  high-tempered  woman, 
hard  to  get  along  with.  She  told  a  witness  of  fighting  and  whip[)ing 
her  husband,  who  was  a  cripple,  and  had  but  one  arm  he  could  use, 
though  the  daughter  testifies  that  in  their  fights  he  whipped  her.  It 
further  appears  that  she  had  on  other  occasions  ran  off  and  left  her 
husband,  and  at  one  time  she  came  to  the  house  of  a  witness  and 
stayed  all  night,  leaving  a  young  baby  with  her  husband,  saj'ing  to  the 
witness  that  she  had  got  mad  and  run  off. 

The  lower  court  refused  to  instruct  the  jury,  at  the  instance  of 
appellant's  counsel,  that  before  finding  him  guilty  they  must  believe 
the  death  of  his  wife  was  produced  by  him  alone  and  in  no  other  way ; 
and  also  refused  to  instruct  that  in  order  to  convict  the}'  must  believe 
he  intentionally  exposed  her,  or  forced  her  to  expose  herself,  to  the 
cold  under  such  circumstances  that  her  death  would  be  the  probable 
and  natural  consequence  of  such  exposure,  and  that  she  died  from  such 
exposure ;  but  in  lieu  of  those  asked  by  his  counsel,  gave  the  follow- 
ing :  "  If  the  jury  believe  .  .  .  that  the  defendant  ...  in  sudden  heat 
and  passion,  and  not  in  his  necessary  or  reasonablj'  necessar}'  self- 
defence,  used  such  force  and  violence  towards  his  wife  as  to  cause  her 
to  leave  his  house  from  fear  of  death  or  great  bodily  harm  at  his  hands, 
and  from  exposure  to  cold  her  death  was  produced  by  the  said  act  of 
the  defendant,  they  should  find  him  guilty  of  manslaughter,"  etc. 

"  Forcing  a  person  to  do  an  act  which  causes  his  death  renders  the 
death  the  guiltj'-  deed  of  him  who  compelled  the  deceased  to  do  the 
act ;  and  it  is  not  material  whether  the  force  be  applied  to  the  body  or 
to  the  mind  ;  but  if  it  were  the  latter,  it  must  be  shown  there  was  the 
apprehension  of  immediate  violence,  and  well-grounded  from  tlie  cir- 
cumstances by  which  the  deceased  was  surrounded.     And  it  need  not 


432  HENDRICKSON  V.   COMMONWEALTH.  [CHAP.  XIL 

appear  that  there  was  no  other  way  of  escape  ;  but  it  must  appear  that 
the  step  was  taken  to  avoid  the  threatened  danger,  and  was  such  as  a 
reasonable  man  might  take."  Russell  on  Crimes,  489 ;  3  Greenleaf 
on  Evidence,  section  142. 

In  a  case  where  the  evidence  was  that  the  defendant,  a  husband, 
beat  his  wife  and  threatened  to  throw  her  out  of  the  window  and  to 
murder  her,  and  that  by  such  threats  she  was  so  terrified  that,  through 
fear  of  his  putting  his  threats  into  execution,  she  threw  herself  out  of 
the  window,  and  of  the  beating  and  bruises  received  by  the  fall  she 
died,  it  was  held  that  if  her  death  was  occasioned  partly  by  the  blows, 
and  partly  by  the  fall,  yet  if  she  was  constrained  by  her  husband's 
threats  of  further  violence,  and  from  a  well-grounded  apprehension  of 
his  doing  such  further  violence  as  would  endanger  her  life,  he  was 
answerable  for  the  consequences  of  the  fall  as  much  as  if  he  had 
thrown  her  out  of  the  window  himself.  And  in  another  case,  where  the 
deceased,  from  a  well-grounded  apprehension  of  a  further  attack  which 
would  have  endangered  his  life,  endeavored  to  escape,  and  in  so  doing 
was  fatally  injured  from  another  cause,  it  was  held  murder.  (See 
Wharton  on  Homicide,  section  374,  where  these  and  other  cases  are 
cited.) 

The  case  of  State  v.  Preslar,  3  N.  C.  421,  was  where,  after  the 
husband  had  desisted  from  beating  his  wife,  she  went  off  a  little 
distance  in  the  yard  and  sat  down,  and  the  husband,  after  about  five 
minutes,  went  into  the  house  and  laid  upon  the  bed  with  his  clothes 
on,  and  about  half  an  hour  afterwards  she  started,  in  company  with 
her  son,  to  the  house  of  her  father,  about  two  miles  off;  but  when  she 
got  within  two  hundred  yards  of  her  father's  house  she  said  she  did 
not  wish  to  go  there  until  morning,  it  being  in  the  night-time,  and  laid 
down  on  a  bed-quilt  in  the  woods.  Early  next  morning  she  gave 
notice  to  the  inmates  of  the  house  of  her  presence,  but  was  not  able 
to  walk  there,  and  the  next  day  died.  In  that  case  the  court  decided 
that  as  she  had  exposed  herself  thus  without  necessity,  and  there  were, 
besides,  circumstances  showing  deliberation  in  leaving  her  home,  the 
husband  could  not  be  held  responsible  to  the  extent  of  forfeiting  his 
life.  But  the  court  at  the  same  time  said  that  "  if,  to  avoid  the  rage 
of  a  brutal  husband,  a  wife  is  compelled  to  expose  herself  by  wading 
through  a  swamp  or  jumping  into  a  river,  the  husband  is  responsible  for 
the  consequences." 

The  question  before  us  is,  whether,  tested  by  the  principles  stated 
and  illustrated,  the  instruction  quoted  correctly  and  fully  embodies 
the  law  applicable  to  this  case. 

It  will  be  perceived  that  the  jury  were  authorized,  by  the  instruction, 
to  convict,  if  they  believed  the  accused  used  such  force  and  violence  as 
to  cause  the  deceased  to  leave  the  house  from  fear  of  death  or  great 
bodily  harm  at  his  hands.  But  they  were  not  instructed,  as  they  should 
have  been  before  convicting,  to  believe,  nor  permitted  to  inquire, 
whether  or  not  such,  fear  was  well  grounded  or  reasonable.     The  jury 


SECT.  II.]  STATE   V.    O'bRIEN.  433 

mi<iht,  and  from  their  verdict  doubtless  did,  believe  she  left  the  house 
IVoiu  fear  of  death  or  great  bodily  harm,  yet,  if  they  had  taken  into 
consideration  tiie  previous  conduct  of  the  deceased,  her  disposition  and 
ability  to  fight  with  her  husband,  Iheir  conii)arative  physical  powers, 
and  all  the  circumstances  proved  in  the  case,  they  might  not  have 
believed  her  fear  was  well  grounded  or  reasonable,  and  unless  it  was, 
the  accused  should  not  be  held  responsible  for  her  death,  for  in  such 
case  he  could  not  be  regarded  as  forcing  her  to  leave  the  house. 

The  jury  should  have  been  further  instructed  that,  to  convict,  they 
must  believe  the  death  of  the  wife  by  freezing  was  the  natural  and 
probable  consequence  of  leaving  the  house  at  the  time  and  under  the 
circumstances. 

There  is  no  evidence  the  accused  prevented  her  re-entrance  into  the 
house,  as  assumed  in  the  instruction  in  regard  to  murder,  and  it  was 
error  to  make  reference  thereto.  For  the  errors  indicated,  the  judg- 
ment is  reversed  for  a  new  trial,  and  other  proceedings  consistent  with 
this  opinion. 


STATE  V.  O'BRIEN. 
Supreme  Court  of  Iowa.     1890. 

[Reported  81  Iowa,  88.] 

The  defendant  was  indicted  for  the  crime  of  murder,  and  upon  a 
trial  was  found  guilty  of  manslaughter.  He  was  adjudged  to  be  im- 
prisoned for  two  years  at  hard  labor  in  the  penitentiary  at  Anamosa, 
and  to  pay  the  costs,  and  from  that  judgment  he  appeals. 

Robinson,  J.^  It  is  suggested  that  the  verdict  is  not  supported  by 
the  evidence,  and  that  it  is  not  shown  that  the  death  of  Stocum  resulted 
from  injuries  inflicted  by  the  defendant.  The  evidence  shows  that 
decedent  had  not  been  in  good  health  for  several  months.  About 
three  weeks  before  the  assault  in  question,  he  consulted  a  physician, 
who  found  his  heart  in  a  diseased  condition,  and  treated  him  for  heart 
difficulty.  He  improved  steadily  under  that  treatment  until  the  assault 
was  made.  If  his  testimony  at  the  preliminary  examination  and  his 
dying  declaration  were  correct,  he  was  choked  and  kicked  and  otherwise 
grossly  maltreated  by  defendant.  It  is  certain  that  he  was  greatly 
excited  by  the  encounter.  Immediately  after  it  occurred  he  applied  at 
a  house  in  the  vicinity  for  shelter,  stating  that  he  was  afraid  to  go  home 
on  account  of  defendant  and  the  Murphy  boys.  A  witness  sa3s  of  his 
appearance  at  that  time:  "He  acted  just  scared  to  death.  His  face 
was  as  pale  as  death  ;  his  lips  were  swollen.  His  hat  was  torn  and 
had  mud  on  lx)th  sides."  His  health  failed  rapidly  from  that  time.  A 
witness  who  saw  him  the  day  after  the  assault  describes  his  appearance 

*  Part  only  of  the  opinion  is  given. 
28 


434  BEGIN  A   V.   RENSHAW.  [CHAP.  XIL 

and  condition  as  follows  :  "I  discovered  he  was  in  pretty  bad  shape  ;  he 
was  pale,  haggard  ;  almost  impossible  for  him  to  breathe.  I  thought 
he  would  reel  right  over  on  the  stoop  tliere.  His  shoulder-blades 
worked  like  a  bellows.  His  voice  was  weak.  His  lips,  dark  blue." 
The  medical  testimony'  shows  that  his  condition  and  failing  health  after 
the  assault,  and  his  death,  were  natural  and  probable  results  of  his 
physical  condition  on  the  night  of  July  15,  and  of  great  excitement 
and  physical  exertion. 

It  was  the  province  of  the  jury  to  determine  whether  the  wrong  of 
defendant  caused  or  contributed  to  decedent's  death.  The  fact  that  he 
was  afflicted  with  a  disease  which  might  have  proved  fatal  would  not 
justify  the  wrongful  acts  of  defendant,  nor  constitute  a  defence  in  law. 
State  V.  Smith,  73  Iowa,  32.  Nor  would  ignorance  on  the  part  of 
defendant  of  the  diseased  physical  condition  of  Stocum  excuse  his  acts. 
State  V.  Castello,  62  Iowa,  404.  We  think  the  evidence  sufficient  to 
sustain  the  verdict,  and  find  no  error  prejudicial  to  defendant  of  which 
he  can  complain. 

The  judgment  of  the  district  court  is  affirmed. 


SECTION  III. 

Assault  and  Battery. 

REGINA  V.  RENSHAW. 
Sussex  Assizes.     1847. 
[Repm-ted  2  Cox  C.  C.  285.] 

Maria  Renshaw  was  Indicted  for  a  misdemeanor.  The  indictment 
contained  also  a  count  for  a  common  assault.^ 

Attree,  for  tlie  prosecution,  stated  that  the  prisoner,  having  been 
delivered  of  [a  bastard]  child  ten  days  before,  on  the  26th  of  June  left 
the  child,  swathed  in  a  large  piece  of  flannel  at  the  bottom  of  a  dry 
ditch,  in  a  field  in  the  parish  of  Bexhill,  and  then  herself  departed  to 
Hastings,  a  place  ten  miles  distant,  where  she  was  afterwards  found. 
There  was  a  pathway  in  the  field  by  the  ditch,  and  a  lane  separated 
from  the  ditch  by  a  hedge,  neither  of  which  was  much  frequented. 
The  child  was  found  alive. 

The  facts  having  been  proved  — 

Parke,  B.  (to  the  jury).  There  were  no  marks  of  violence  on  the 
the  child,  and  it  does  not  appear,  in  the  result,  that  the  child  actually 
experienced  any  injury  or  inconvenience,  as  it  was  providentially 
found  soon  after  it  was  exposed ;  and  therefore,  although  it  is  said  la 

^  Only  so  much  of  the  case  as  involves  the  qaestion  of  assault  is  given.  —  Ed. 


SECT.  III.]  REGINA   V.   CASE.  435 

some  of  the  books  that  an  exposure  to  the  inclemency  of  the  weather 
111:13-  amount  to  an  assault,  yet  if  that  be  so  at  all,  it  can  only  be 
when  the  person  exposed  sutlers  a  hurt  or  injury  of  some  kind  or  other 
from  the  exposure. 


REGINA  V.  CASE. 
Crown  Case  Reserved.     1850, 

[Reported  4  Cox  C.  C.  220] 

The  following  case  was  reserved  by  the  Recorder  of  Dover: 
William  Case  was  tried  before  me  at  the  last  April  Quarter  Sessions 
for  the  borough  of  Dover,  for  an  assault  upon  Mary  Impitt. 

The  defendant  was  a  medical  practitioner.  Mary  Impitt,  who  was 
fourteen  years  old,  was  placed  under  his  professional  care  by  her 
parents,  in  consequence  of  illness,  arising  from  suppressed  menstrua- 
tion ;  and  on  the  occasion  of  her  going  to  his  house,  and  informing  him 
she  was  no  better,  he  observed,  "Then  I  must  try  further  means  with 
you."  He  then  took  hold  of  her,  and  laid  her  down  in  his  surgery, 
lifted  up  her  clothes,  and  had  carnal  connection  with  her,  she  making 
no  resistance,  believing  (as  she  stated)  that  she  was  submitting  to 
medical  treatment  for  the  ailment  under  which  she  labored.  The  de- 
fendant's counsel,  in  his  address  to  the  jury,  contended  that  the  girl 
was  a  consenting  party  ;  therefore,  that  the  charge  of  assault  could  not 
be  sustained. 

I  told  the  jury  that  the  girl  was  of  an  age  to  consent  to  a  man  having 
carnal  connection  with  her,  and  that  if  they  thought  she  consented  to 
such  connection  with  the  defendant  he  ought  to  be  acquitted  ;  but  that 
if  they  were  satisfied  she  was  ignorant  of  the  nature  of  the  defendant's 
act,  and  made  no  resistance,  solel}'  from  a  bond  fide  belief  that  the 
defendant  was  (as  he  represented)  treating  her  medically,  with  a  view 
to  her  cure,  his  conduct,  in  point  of  law,  amounted  to  an  assault. 

The  jury  found  the  defendant  guilt}',  and  he  was  sentenced  to  be 
imprisoned  for  eighteen  calendar  months  in  the  borough  gaol,  where  he 
now  remains.  I  have  to  pray  the  judgment  of  ray  lords,  justices,  and 
others,  sitting  in  a  court  of  appeal,  whether  my  direction  to  the  jury 
was  correct  in  point  of  law. 

Horn,  for  the  prisoner.  The  consent  of  the  girl  is  found  ;  for  con- 
senting and  not  resisting  are  synonymous.  [Coleridge,  J.  — They  are 
clearly  used  in  a  different  sense  here.  Wilde,  C.  J.  —  If  a  medical 
man  uses  an  injurious  ointment  the  patient  does  not  resist  its  applica- 
tion ;  but  it  cannot  be  said  that  he  consents.  Alderson,  B.  —  How 
does  this  differ  from  the  case  of  a  man  pretending  to  be  the  husband  of 
the  woman  ?]  Fraud  is  not  expressly  found  in  this  case.  It  ought  to 
have  been  left  to  the  jury  expressly  to  say  whether  the  act  done  was 


^l 


436  REGINA   V.   CASE.  [CHAP.  XII. 

necessary  or  proper.  It  is  consistent  with  the  verdict  that  he  ma}-  have 
treated  her  medically.  [Alderson,  B.  —  He  pretended  that  that  was 
medicine  which  was  not ;  hereby  that  is  fraud.]  In  the  notes  to  R. 
V.  Read  (1  Den.  C.  C.  379),  it  is  said,  "It  seems  from  R.  v.  Martin 
(2  Moo.  C.  C.  123  ;  9  Car.  &  P.  213) ;  R.  v.  Banks  (8  Car.  &  P.  574)  ; 
R.  V.  Meredith  (8  Car.  &  P.  589),  first,  that  the  stat.  9  Geo.  4,  c.  31, 
s.  17,  does  not  deprive  a  girl  under  ten  years  of  age  of  the  power  to 
consent  which  she  had  at  common  law  ;  secondly,  that  consequentl}'  if 
she  consents  to  the  mere  incomplete  attempt,  such  an  attempt  is  not 
punishable  as  an  assault;  thirdly,  that  it  is  punishable  as  an  attempt 
to  commit  a  felon}',  viz.,  as  a  misdemeanor  ;  "  and  further,  "  an  assault 
seems  to  be  any  sort  of  personal  ill-usage,  short  of  a  battery  done  to 
another  against  his  consent.  Therefore,  such  act,  done  with  consent, 
is  no  breach  of  the  peace  or  crime."  Children  of  tender  age  are,  there- 
fore, capable  of  consenting;  so  is  an  idiot  (R.  v.  Ryan,  2  Cox  C.  C. 
115).  [Patteson,  J.  —  What  do  3'ou  say  the  jury  found?]  It  is  con- 
sistent with  the  verdict  that  he  may  have  treated  her  medically. 
[Coleridge,  J.  —  Suppose  even  that  he  did  the  act  bond  fide  for  the 
purpose  which  he  pretended,  would  that  justify  him?  Had  he  a  right 
to  pollute  the  child's  body  ?]  Certainly  not,  morally  ;  but  the  question 
is,  was  it  an  assault  in  the  e3'e  of  the  law,  there  being  consent  in  fact. 
[Platt,  B.  —  The  girl  did  not  consent  to  that  which  was  done.  She 
did  not  know  the  nature  of  the  act.]  In  Read's  case  (1  Den.  C.  C  377), 
the  jury  found  that,  from  her  tender  years,  the  child  did  not  know 
what  she  was  about.  Yet,  as  they  found  that  she  assented,  the  prison- 
ers were  held  entitled  to  an  acquittal  upon  the  indictment,  which 
charged  them  with  an  assault.  [Alderson,  B.  —  It  must  be  taken  that 
there  was  actual  consent  in  that  case.]  Even  if  fraud  was  established, 
still  there  was  no  assault.  The  doctrine  of  rape  j^er  fraudem  stands 
upon  the  decision  of  two  judges,  Alderson,  B.  and  Gurne}',  B.,  in  R.  v. 
Williams  (8  Car.  &  P.  286),  and  R.  v.  Saunders  {ih.  265).  In  those  cases 
the  defendants  were  indicted  for  rape,  and  it  appearing  that  the  con- 
sent of  the  woman  in  each  case  had  been  obtained  under  the  belief  that 
the  man  was  her  husband,  the  learned  judges  directed  that  the  prison- 
ers should  be  acquitted  of  the  charge  of  rape,  but  convicted  of  an 
assault.  [Alderson,  B.  —  In  the  case  before  me  I  followed  several 
previous  decisions,  although  I  doubted  them.]  If  they  were  guilt}'  of 
an  assault,  and  penetration  was  proved,  why  were  they  not  guilty  of 
rape?  [Alderson,  B.  —  Suppose  a  woman  is  ravished  whilst  under  the 
influence  of  laudanum.  I  recollect  a  case  before  me  on  the  Home  Cir- 
cuit, where,  at  the  time  when  the  offence  was  committed,  the  woman 
was  completely  insensible  from  drunkenness.  I  doubted  whether  the 
prisoner  ought  to  be  convicted  of  rape  ;  but  upon  consultation  with  Lord 
Denman  I  held  that  he  might.]  R.  v.  Camplin  (1  Den.  C.  C.  89  ;  1 
Cox  C.  C.  220),  was  a  somewhat  similar  case,  but  different  in  this,  — 
that  the  prisoner  gave  the  woman  the  liquor  which  made  her  drunk. 
He  therefore  contributed  to  the  production  of  the  state  of  insensibility 


SI-XT.  III.]  REGINA   V.    CASE.  437 

during  which  the  ofTence  was  cominittcd  ;  and  if  the  woman  does  not 
consent  as  long  as  she  has  the  jxjwer  of  consenting  or  resisting,  a 
reasonable  inference  that  she  did  not  consent  nui}'  be  drawn  from  her 
previous  conduct ;  the  act  would  l)i'  done  ajiainst  "  her  permanent  will," 
as  Lord  Denman  expre.s.scd  it  in  R.  i>.  Caniplin  ;  but  if  fraud  dispenses 
with  the  necessity  of  resistance,  any  deceit  will  have  that  effect ;  anil  it 
would  be  an  assault  if  the  woman  consented,  upon  a  false  representa- 
tion that  the  man  would  marry  her,  or  that  medically  it  would  be  bene- 
ficial to  her.  If  a  surgeon  cuts  olf  a  leg  or  draws  a  tooth,  and  the 
patient  consents  because  he  believes  that  he  is  being  medically  treated, 
could  he  afterwards  indict  him  for  an  assault?  Again,  the  charge  of 
rape  includes  an  assault ;  and  is  there  to  be  one  kind  of  consent  for  an 
assault  and  another  kind  of  consent  to  get  rid  of  the  charge  of  rape  ? 
The  cases,  therefore,  it  is  submitted,  deserve  to  be  reconsidered. 
[Wilde,  C.  J.  —  There  are  two  cases  which  clearly  show  that  this  de- 
fendant was  guilty  of  an  assault,  and  you  say  that  the  court  ought  to 
have  held  him  guilty  of  rape  ;  but  it  would  not  be  less  an  assault  if  it 
should  be  held  to  be  rape.]  If  upon  an  indictment  for  assault  a  rape  is 
proved,  the  misdemeanor  merges  in  the  felony  ;  but  it  is  held  that  if 
the  connection  takes  place  by  consent  obtained  by  fraud  it  is  not  rape. 
If  not,  neither  is  it  an  assault. 

lidrrow,  contra,  was  not  called  upon. 

"Wilde,  C.  J.  I  have  no  doubt  in  this  case  that  the  direction  of  the 
learned  recorder  was  perfectly  correct.  The  objection  is  to  the  latter 
part  of  the  charge  ;  for  he  first  of  all  tells  the  jury  that  the  girl  was  of 
an  age  to  consent,  and  that,  if  she  consented,  the  prisoner  must  be 
acquitted.  Therefore,  he  treats  her  as  competent  to  consent,  and  her 
consent  as  a  ground  of  acquittal;  bnt  then,  that  direction  is  qualified 
by  what  he  adds  afterwards,  —  that  if  they  were  satisfied  that  she  was 
ignoiant  of  the  nature  of  the  act,  and  made  no  resistance  solely  from  a 
bond  fide  belief  that  the  defendant  was,  as  he  represented,  treating  her 
medicallj-  with  a  view  to  her  cure,  his  conduct  amounted  to  an  assault. 
That  is  the  part  which  is  objected  to.  The  jury  found  the  prisoner 
guilt}'.  The  girl  was  of  an  age  at  which  she  might  be  totally  ignorant 
of  the  nature  of  the  act,  morally  or  religiously,  and  of  the  effect  which 
it  might  have  upon  her  character  and  station  in  life ;  and  she  was  sent 
by  her  parents  to  the  defendant  to  be  medically  treated  by  him.  It  is 
said  that  he  may  have  treated  her  medically  ;  if  so,  can  it  be  said  that 
he  did  not  commit  both  a  legal  and  ecclesiastical  offence?  But  the  jury 
must,  I  think,  be  taken  to  have  found  that  it  was  not  medical  treatment. 
I  admit  that  the  question  was  not  put  to  them  ;  nor  was  it  necessary, 
because,  whether  the  defendant  thought  it  would  be  beneficial  or  not, 
his  act  was  altogether  improper  and  unjustifiable.  He  was  guilty  of  a 
great  offence.  lie  in  truth  disarms  the  girl ;  and  she  submits  under 
a  misrepresentation  that  it  was  some  act  necessary  and  proper  for  her 
cure  ;  she  made  no  resistance  to  an  act  which  she  supposed  to  be  quite 
different  from  what  it  was ;    what  she   consented  to  was  something 


438  REGINA  V.   CLARENCE.  [CHAP.  XIL 

wholly  different  from  that  which  was  done,  and,  therefore,  that  which 
was  done,  was  done  without  her  consent.  I  am  not  prepared  to  say 
that  the  two  cases  referred  to  might  not  be  cases  of  rape ;  for  every 
rape  includes  an  assault ;  but  it  is  not  necessary  to  decide  that  ques- 
tion now. 

Alderson,  B.  This  is  quite  undistinguishable  from  the  two  cases 
decided  by  myself  and  my  brother  Gurney,  which  were  only  the  sequel 
of  many  others  previously  decided.  When  a  man  obtains  possession  of 
the  person  of  a  woman  by  fraud,  it  is  against  her  will ;  and  if  the 
question  were  res  nova,  I  should  be  disposed  to  say  that  this  was  a 
rape,  but  that  is  not  necessary  in  this  case.  This  is  an  indictment  for 
an  assault,  and  the  prisoner  obtains  the  consent  of  the  child  by 
representing  the  act  as  something  different  from  what  it  was. 

Patteson,  J.  Mr.  Horn  confounds  active  consent  and  passive  non- 
resistance,  which,  I  think,  the  learned  recorder  has  very  accurately 
distinguished.  Here  the  girl  did  not  resist ;  but  still  there  was  no 
consent. 

Coleridge,  J.  The  girl  was  under  medical  treatment,  and  she 
makes  no  resistance  only  in  consequence  of  the  confidence  which  she 
reposed  in  the  defendant  as  her  medical  adviser.  If  there  had  been  no 
consent  the  defendant's  act  would  have  been  indisputably  an  assault ; 
and  under  the  circumstance,  therefore,  his  conduct  amounted  to  an 
assault  according  to  cases  which  I  should  be  sorrj-  to  see  infringed. 

Platt,  B.  I  think  my  brother  Patteson  has  pointed  out  the  fallacy 
of  Mr.  Horn's  argument  as  to  consent.  The  girl  consents  to  one  thing, 
and  the  defendant  does  another ;  that  other  involving  an  assault.^ 

Conviction  affirmed. 


REGINA  V.  CLARENCE. 
Crowk  Case  Reserved.     1888. 

[Reported  16  Cox  C.  C.  511,  22  Q.  B.  D.  23.] 

Wills,  J.,*^  read  the  following  judgment:  The  prisoner  in  this 
case  has  been  convicted  (1)  of  "  an  assault"  upon  his  wife,  "  occasion- 
ing actual  bodily  harm,"  under  sect.  24  &  25  Vict.  c.  100,  s.  47  ;  and 
(2)  of  "unlawfully  and  maliciously  inflicting"  upon  her  "grievous 
bodily  harm  "  under  sect.  20  of  the  same  statute.  The  facts  are  that 
he  was,  to  his  knowledge,  suffering  from  gonorrhoea ;  that  he  had 
marital  intercourse  with  his  wife  without  informing  her  of  the  fact ; 
that  he  infected  her,  and  that  from  such  infection  she  suffered  grievous 
bodily  harm.    The  question  is,  whether  he  was  rightly'  convicted  upon 

*  Ace.  Rex  V.  Nichols,  Russ.  &  Ry.  130;  Rex  v.  Rosinski,  1  Moody,  19;  Reg.  v. 
Woodhnrst,  12  Cox  C.  C.  443  ;  Reg.  v.  Lock,  L.  R.  2  C.  C.  R.  10.  —  Ed. 

*  Part  of  each  opinion,  not  involving  the  question  of  assault,  is  omitted. 


SECT.  III.]  REGINA.  V.   CLARENCE.  439 

either  count  First,  was  he  guilty  of  an  assault?  In  support  of  a 
conviction  it  is  urged  that  even  a  married  woman  is  under  no  obliga- 
tion to  consent  to  intercourse  with  a  diseased  husband  ;  that  had  the 
wife  known  that  her  husband  was  diseased  she  would  not  have  con- 
sented ;  that  the  husband  was  guilty  of  a  fraud  in  concealing  the  fact 
of  his  illness  ;  that  her  consent  was  therefore  obtained  by  fraud,  and 
was  therefore  no  consent  at  all,  and,  as  the  act  of  coition  would  imply 
an  assault  if  done  without  consent,  he  can  be  convicted.  This  reason- 
ing seems  to  me  eminently  unsatisfactory.  That  consent  obtained  by 
fraud  is  no  consent  at  all  is  not  true  as  a  general  proposition  either  in 
fact  or  in  law.  If  a  nian  meets  a  woman  in  the_street^and  knowingly 
givesjier^  bad  money  m  orderto  procure  her  consejvt_tQ  intercourse 
witbJnnQ^^^eobtainsher_conse^  it  would  b-C  childis^  to 

say_thatjbe  did  notconsent.  In  respect  of  a  contract,  fraud  does  not 
destroy  the  consent ;  it  only  makes  it  revocable.  Money  or  goods 
obtained  by  false  pretences  still  become  the  property'  of  the  fraudulent 
obtainer  unless  and  until  the  contract  is  revoked  by  the  person  de- 
frauded, and  it  has  never  been  held  that,  us  far  as  regards  the  applica- 
tion of  the  criminal  law,  the  repudiation  of  the  contract  had  a 
retrospective  effect,  or  there  would  have  been  no  distinction  between 
obtaining  money  under  false  pretences  and  theft.  A  second  and  far 
more  effective  way  of  stating  the  argument,  however,  is  that  connection 
j  with  a  diseased  man  and  connection  with  a  sound  man  are  things  so 
I  essentially  different  that  the  wife's  submission  without  knowledge  of 
the  facts  is  no  consent  at  all.  It  is  said  that  such  a  case  rests  upon 
the  sam'^  footing  with  the  consent  to  a  supposed  surgical  operation  or 
to  conroction  with  a  man  erroneously^  supposed  to  be  the  woman's 
husband.  In  the  latter  case  there  has  been  great  difference  of  judiciall 
opinion  as  to  whether  it  did  or  did  not  amount  to  the  crime  of  rape;l 
but  as  it  certainly  would  now  be  rape  by  virtue  of  the  Criminal  Law 
Amendment  Act,  1885  (48  &  49  Vict.  c.  69),  s.  4,  I  treat  it  as  so  set- 
tled. A  third  way  of  putting  the  case  is^  that  inasmuch  as  the  act 
done  amounts  to  legal  cruelty  according  to  the  doctrines  formerly  of 
the  Ecclesiastical  Courts,  and  now  of  the  Divorce  Court,  it  cannot  be 
said  to  be  within  the  consent  implied  by  the  marital  relation.  These 
different  ways  of  putting  the  argument  in  favor  of  a  conviction  have 
some  important  differences.  According  to  each  the  consent  of  the 
marital  relation  does  not  apply  to  the  thing  done,  —  a  fact  as  to  which 
there  does  not  seem  to  be  room  for  doubt,  and  according  to  each  the 
want  of  it  makes  the  transaction  an  assault.  According  to  the  first,  it 
is  the  fraudulent  suppression  of  the  truth  which  destroys  the  consent 
de  facto  given,  a  proposition  involving  as  a  necessary  element  in  the 
offence  the  knowledge  of  his  condition  on  the  part  of  the  offender. 
According  to  the  second,  it  is  the  difference  between  the  thing  sup- 
posed to  be  done  and  the  thing  actually  done  that  negatives  the  idea 
of  consent  at  all,  and  in  that  view  it  must  be  immaterial  whether  the 
offender  knew  that  he  was  ill  or  not      According  to  the  third,  his 


440  KEGINA   V.    CLARENCE.  [CHAP.  XII 

knowledge  is  material,  not  on  the  ground  of  fraudulent  misrepresenta- 
tion, but  because  it  is  an  element  in  legal  cruelty  as  that  term  is  under- 
stood in  the  Divorce  Court.  It  makes  a  great  difference  upon  which 
of  these  grounds  a  conviction  is  supported.  Each  of  them  covers  an 
area  vastl}-  greater  than  the  ground  occupied  by  the  circumstances  of 
the  present  case.  If  the  first  view  be  correct,  every  man,  as  has  been 
pointed  out,  who  knowingly  gives  a  piece  of  bad  money  to  a  prostitute 
to  procure  her  consent  to  intercourse,  or  who  seduces  a  woman  by 
representing  himself  to  be  what  he  is  not,  is  guilty  of  assault,  and,  as 
it  seems  to  me,  therefore,  of  rape.  If  the  second  view  be  correct,  it 
applies  in  similar  events  just  as  much  to  unmarried  as  to  married 
people,  unless  the  circumstances  should  establish  that  the  parties  were 
content  to  take  their  chances  as  to  their  respective  states  of  health ; 
and  the  allegation  that  a  man  had  given  an  assurance  to  a  prostitute 
before  having  intercourse  with  her  that  he  was  sound  when  he  was  not 
so  in  fact,  might  be  a  ground  for  putting  him  upon  a  trial  for  rape.  If 
the  third  view  be  correct,  it  places  the  married  man,  in  the  eye  of  the 
criminal  law,  in  a  much  worse  position  than  the  unmarried,  and  makes 
him  guilty  of  an  assault,  and  possibly  of  rape,  when  an  unmarried  man 
would  not  be  liable  to  the  same  consequences.  It  may  be  said  that, 
from  the  moral  point  of  view,  his  case  is  the  worse  ;  but  there  are  two 
sides  to  this  as  to  most  other  questions.  The  man  wlio  goes  out  of  his 
way  to  seek  intercourse  under  such  circumstances  —  and,  be  it  remem- 
bered that  the  hypothesis  I  am  now  dealing  with  assumes  knowledge  of 
his  condition  on  the  part  of  the  man  —  is  without  excuse.  There  may 
be  many  excuses  for  the  married  man  suggested  b}'  the  modes  of  life 
with  which  poverty  and  overcrowding  have  to  do.  We  are  thus  intro- 
duced, as  it  seems  to  me,  to  a  set  of  very  subtle  metaphysical  questions. 
If  we  are  invited  to  apply  the  analogy  of  the  cases  in  which  a  man  has 
procured  intercourse  b}'  personating  a  husband,  or  by  representing  that 
he  was  performing  a  surgical  operation,  we  have  to  ask  ourselves 
whether  the  procurement  of  intercourse  b}'  suppressing  the  fact  that 
the  man  is  diseased  is  more  near!)'  allied  to  the  procurement  of  inter- 
course by  misrepresentation  as  to  who  the  man  is,  or  as  to  what  is 
being  done,  or  to  misrepresentations  of  a  thousand  kinds  in  respect  of 
whicli  it  has  never  yet  occurred  to  any  one  to  suggest  that  intercourse 
so  procured  was  an  assault  or  a  rape.  There  are  plenty  of  such  in- 
stances in  which  the  knowledge  of  the  truth  would  have  made  the 
victim  as  ready  to  accept  the  embraces  of  a  man  stricken  with  small- 
pox or  lepros3\  Take,  for  example,  the  case  of  a  man  without  a 
single  good  quality,  a  gaol-bird,  heartless,  mean,  and  cruel,  without 
the  smallest  intention  of  doing  an3-thing  but  possessing  himself  of  the 
person  of  his  victim,  but  successfully  representing  himself  as  a  man  ot 
good  famil}'  and  connections  prevented  by  some  temporary  obstacle 
from  contracting  an  immediate  marriage,  and  with  conscious  hypocrisy 
acting  the  part  of  a  devoted  lover,  and  in  this  fashion,  or  perhaps  under 
the  guise  of  affected  religious  fervor,  effecting  the  ruin  of  his  victim. 


SECT.  Ill]  REGINA   V.    CLARENCE.  441 

lu  all  that  induces  consent  there  is  not  less  difTercnce  between  the  man 
to  whom  the  woman  supposes  she  is  yielding  herself  and  the  man  bj' 
whom  she  is  really  betrayed,  than  there  is  between  the  man  bodily 
sound  and  the  man  alllicted  with  a  contagious  disease.  Js  there  to  be 
a  distinction  in  this  respect  between  an  act  of  intercourse  with  a  wife 
who  on  this  special  occasion  would  have  had  a  right  to  refuse  her  con- 
sent, and  certainly  would  have  refused  it  had  she  known  the  truth,  and 
the  intercourse  taking  place  under  the  general  consent  inferred  from 
a  bigamous  marriage  obtained  by  the  false  representation  that  tlie  man 
was  capable  of  contracting  a  legal  marriage?  In  such  a  case  the  man 
can  give  no  title  of  wife  to  the  woman  whose  person  he  obtains  bj'  the 
false  representation  that  he  is  unmarried,  and  bj*  a  ceremony  which, 
under  the  circumstances,  is  absolutely  void.  Where  is  the  difference 
between  consent  obtained  by  the  suppression  of  the  fact  that  the  act  of 
intercourse  ma}'  produce  a  foul  disease,  and  consent  obtained  bj'  the 
suppression  of  the  fact  that  it  will  certainly  make  the  woman  a  concu- 
bine, and  while  destroying  her  status  as  a  virgin  withhold  from  her  the 
title  and  rights  of  a  wife?  Where  is  the  distinction  between  the  mis- 
take of  fact  which  induces  the  woman  to  consent  to  intercourse  with  a 
man  supposed  to  be  sound  in  body,  but  not  reall}'  so,  and  the  mistake 
of  fact  which  induces  her  to  consent  to  intercourse  with  a  man  whom 
she  believes  to  be  her  lawful  husband,  but  who  is  none?  Man}'  women 
would  think  that,  of  two  cruel  wrongs,  the  bigamist  had  committed  the 
worse.  These  are  but  specimens  of  the  questions  which  must  be  faced 
before  the  circumstances  of  the  present  case  can  be  pronounced  to 
constitute  an  assault ;  and  such  considerations  lead  one  to  pause  on 
the  threshold  and  inquire  whether  the  enactment  under  consideration 
could  really  have  been  intended  to  apply  to  circumstances  so  com- 
pletely removed  from  those  which  are  usually  understood  when  an 
assault  is  spoken  of,  or  to  deal  with  matters  of  any  kind  involving  the 
sexual  relation  or  act.  The  description  of  the  offence  constituted  by 
sect.  47  is  as  follows:  "Whoever  shall  be  convicted  of  an  assault 
occasioning  actual  bodily  harm."  The  section  is  the  last  of  a  group  of 
twelve  headed  "Assaults."  None  of  them  except  sect.  43  implies 
that  any  distinction  between  males  and  females  is  thought  of,  and  that 
section  points  to  nothing  of  a  sexual  character.  It  merel}'  provides 
that  in  cases  of  assault  upon  males  under  fourteen  and  upon  females 
generallv,  if  the  assault  or  battery  is  of  such  an  aggravated  character 
that  it  cannot  in  the  opinion  of  the  justices  be  sufficiently  punished  as  a 
common  assault  or  battery,  it  shiill  be  lawful  for  them  to  inflict  a  heavier 
punishment.  Indecent  assaults,  as  such,  upon  females  are  dealt  with 
by  sect.  52,  and  upon  males  b}-  sect.  62,  and  there  is  therefore  no 
ground  for  supposing  that  anything  specially  between  the  sexes  is 
pointed  at  either  by  this  section,  or  by  any  of  those  in  the  group  to 
which  it  belongs.  The  next  group  of  eight  sections  (48-55)  is  headed 
"Rape,  abduction,  or  defilement  of  women,"  and  deals  specially  with 
sexual  crimes.     Surely  this  was  the  place  in  which  to  find  an  enact- 


442  REGINA   V.    CLARENCE.  [CHAP.  XIL 

ment  dealing  with  the  very  peculiar  circumstances  now  before  us,  and 
it  cannot  really  have  been  intended  that  they  should  be  embraced  by  a 
section  whose  terms  are  applicable  to,  and  as  it  seems  to  me  satisfied 
bv,  the  class  of  cases  which  would  naturally'  occur  to  one's  mind,  those 
of  direct  violence.  The  worst  of  the  contagious  diseases  of  this  class 
has,  I  believe,  been  known  m  this  country  for  close  upon  four  centuries. 
The  circumstances  which  have  happened  in  this  case  cannot  have  been 
of  infrequent  occurrence  during  that  interval,  and  cannot  have  failed 
justh'  to  give  rise  to  the  bitterest  resentment.  It  seems  to  my  mind  a 
ver\'  cogent  argument  against  the  conviction  that,  if  the  view  of  tiie 
law  upon  which  it  is  founded  be  correct,  thousands  of  otfending  hus- 
bands, and  as  I  think  also  of  offending  wives,  must  have  rendered 
themselves  amenable  to  the  criminal  law ;  and  yet  it  was  reserved  for 
the  year  1866,  when  Reg.  v.  Bennett  (4  F.  &  F.  1105)  was  decided,  to 
discover  that  such  transgressors  might  have  been  indicted  and  crimi- 
nally dealt  with  during  all  that  long  period.  It  is  true  that  women  take 
a  different  place  in  social  position,  and  have  by  Act  of  Parliament 
many  rights  and  by  common  usage  much  social  liberty  which  no  one 
would  have  claimed  for  them  centuries  ago.  This  fact,  however,  seems 
to  me  a  strangely  insufficient  reason  for  a  new  reading  of  the  criminal 
law  fraught  with  consequences  which  no  one  can  deny  to  be  of  a  ver3' 
serious  and  widespread  character.  The  principle  upon  which  a  convic- 
tion in  this  case  must  be  upheld  will  or  will  not  apply  to  the  intercourse 
of  unmarried,  as  well  as  of  married,  men  and  women,  according  to  the 
ground  or  grounds  selected  upon  which  to  justify  it.  If  it  is  based 
upon  the  notion  of  cruelt}'  as  understood  in  the  Divorce  Court,  the 
case  of  the  unmarried  man  and  woman  falls  without  its  purview.  If 
suppression  of  the  truth  be  a  material  element  in  the  inquiry,  actual 
misrepresentation  on  the  subject  of  health  would  put  an  unmarried 
man  or  woman  in  the  same  position  as  the  married  man  or  woman 
who  conceals  that  fact  against  which  the  married  state  ought  to  be  a 
sufficient  guarantee.  I  intentionally  refer  to  women  as  well  as  men, 
for  it  is  a  great  mistake  to  look  at  questions  of  this  kind  as  if  sexual 
faults  and  transgressions  were  all  on  the  side  of  one  sex.  The  unmar- 
ried woman  who  solicits  and  tempts  a  perhaps  reluctant  man  to  inter- 
course which  he  would  avoid  like  death  itself  if  he  knew  the  truth  as  to 
her  health,  must  surely,  under  some  circumstances  at  least,  come  under 
the  same  criminal  liabilit}'  as  the  same  man.  If,  again,  the  conviction 
be  upheld  on  the  ground  of  the  difference  between  the  thing  consented 
to  and  the  thing  done,  the  principle  will  extend  to  many,  perhaps  most, 
cases  of  seduction  and  to  other  forms  of  illicit  intercourse,  including  at 
least  theoretically  the  case  of  prostitution ;  and  if  such  difference  be 
the  true  ground  upon  which  to  base  a  confirmation  of  the  conviction, 
knowledge  of  his  or  her  condition  on  the  part  of  the  person  affected 
is  immaterial.  It  is  the  knowledge  or  want  of  knowledge  on  the  part 
of  the  person  who  suffers  from  contagion  alone  that  is  the  material 
element     Surely  these  considerations  point  to  the  conclusion  that  a 


SECT.  III.]  REGINA   V.    CLARENCE.  443 

wide  door  will  be  opened  to  inquiries  not  of  a  wholesome  kind,  in 
which  the  didiculties  in  the  way  of  arriving  at  truth  are  often  enor- 
mous, and  in  which  the  danger  of  going  wrong  is  as  great  as  it  is  b}' 
people  in  general  inadequate!}-  api)reciated.  A  new  field  of  extortion 
may  be  developed,  and  very  possibly  a  fresh  illustration  afforded  of 
the  futility  of  trying  to  teach  morals  by  the  application  of  the  criminal 
law  to  cases  occupying  the  doubtful  ground  between  immorality  and 
crime,  and  of  the  dangers  which  always  beset  such  attempts.  Of 
course,  if  by  legislation  such  cases  should  be  brought  within  the  crim- 
inal law,  all  we  shall  have  to  do  will  be  to  face  the  difliculties  and  do 
our  best  to  administer  the  law.  It  seems  to  me,  however,  that  such 
an  extension  of  the  criminal  law  to  a  vast  class  of  cases  with  whi(;h  it 
has  never  yet  professed  to  deal  is  a  matter  for  the  Legislature  and  the 
Legislature  only.  I  understand  the  process  of  expansion  by  which 
the  doctrines  of  the  conunon  law  are  properly  made  by  judicial  con- 
struction to  apply  to  altered  modes  of  life  and  to  new  circumstances 
and  results  thus  brought  about  which  would  have  startled  our  ancestors 
could  they  have  foreseen  them.  I  do  not  understand  such  a  process, 
and  I  do  not  think  it  legitimate,  when  every  fact  and  every  circum- 
stance which  goes  to  constitute  the  alleged  offence  is  identical  with 
what  it  has  been  for  many  hundreds  of  years  past.  Whether  further 
legislation  in  this  direction  is  desira])le  is  a  question  for  legislators  rather 
than  lawyers,  and  the  only  remark  that  I  desire  to  make  upon  this  sub-  i 
ject  is  that,  apart  from  cases  of  actual  violence,  and  of  children  so  [j 
young  that  the  very  fact  of  touching  them  in  the  way  of  sexual  rela-  jl 
tion  may  fairly  be  treated  as  a  crime,  the  mysteries  of  sexual  impulses 
and  intercourse  are  well  nigh  insoluble,  and  the  difficulty  of  arriving  at 
the  truth  in  the  case  of  imputed  misconduct  enormous  ;  and  I  doubt 
whether  they  can  be  thoroughly  appreciated  without  the  experience 
gained  by  trying  cases  of  intercourse  with  girls  near  the  age  of  six- 
teen, and  they  certainly  suggest  the  necessity  of  the  utmost  care  in 
dealing  by  way  of  legislation  with  the  subject  under  discussion.  If 
intercourse  under  the  circumstances  now  in  question  constitute  an 
assault  on  the  part  of  the  man,  it  must  constitute  rape,  unless,  indeed, 
as  between  married  persons  rape  is  impossible,  —  a  proposition  to  which 
I  certainly  am  not  prepared  to  assent,  and  for  which  there  seems  to  me 
to  be  no  sufficient  authority.  As  between  unmarried  people  this  quah- 
fication  will  not  apply.  I  cannot  understand  why,  as  a  general  rule,  if 
intercourse  be  an  assault,  it  should  not  be  a  rape.  To  separate  the 
act  into  two  portions,  as  was  suggested  in  one  of  the  Irish  cases,  and 
to  say  that  there  was  consent  to  so  much  of  it  as  did  not  consist  in  the 
administration  of  an  animal  poison,  seems  to  me  a  subtlety  of  an  ex- 
treme kind.  There  is,  under  the  circumstances,  just  as  much  and  just 
as  little  consent  to  one  part  of  the  transaction  as  to  the  rest  of  it.  No 
one  can  doubt  that  in  this  case,  had  the  truth  been  known,  there  would 
have  been  no  consent  or  even  a  distant  approach  to  it.  I  grontly  prefer 
the  reasoning  of  those  who  say  that,  because  the  consent  was  not  to 


444  REGINA   V.    CLARENCE.  [CHAP.  XII, 

the  act  done,  the  thing  done  is  an  assault.  If  an  assault,  a  rape  also, 
as  it  appears  to  me.  1  ain  well  aware  of  the  respect  due  to  the  opinion 
of  the  very  learned  judges  from  whom  I  differ  ;  but  I  cannot  help  say- 
ing that  to  me  it  seems  a  strange  misapplication  of  language  to  call 
such  a  deed  as  that  under  consideration  either  a  rape  or  an  assault.     In 

tether  words,  it  is,  roughly  speaking,  where  the  woman  does  not  intend 
tliat  the  sexual  act  shall  be  done  upon  her  either  at  all,  or,  what  is 
pretty  much  the  same  thing,  by  the  particular  individual  doing  it ;  and 
an  assault  which  includes  penetration  does  not  seem  to  me,  under  such 
circumstances,  to  be  anything  but  rape.  Of  course,  the  thing  done  in 
the  present  case  is  wicked  and  cruel  enough.  No  one  wishes  to  say  a 
word  in  palliation  of  it.  But  that  seems  to  me  to  be  no  reason  for 
describing  it  as  something  else  than  it  is,  in  order  to  bring  within  the 
criminal  law  an  act  which,  up  to  a  ver}-  recent  time,  no  one  ever 
thought  was  within  it.  If  coition,  under  the  circumstances  in  question, 
be  an  assault,  and  if  the  reason  wh}'  it  is  an  assault  depends  in  any 
degree  upon  the  fact  that  consent  would  have  been  withheld  if  the 
truth  had  been  known,  it  cannot  the  less  be  an  assault  because  no  mis- 
chief ensues  to  the  woman,  nor,  indeed,  where  it  is  mereh'  uncertain 
whether  the  man  be  infected  or  not.  For  had  he  disclosed  to  the 
woman  that  there  might  be  the  peril  in  question,  she  would,  in  most 
cases  other  than  that  of  mere  pi'ostitution,  have  refused  her  consent, 
and  it  is,  I  should  hope,  equally  true  that  a  married  woman,  no  less 
than  an  unmarried  woman,  would  be  justified  in  such  a  refusal.  In  all 
such  cases,  therefore,  apart  from  the  suggested  impossibility  of  rape 
upon  a  wife,  rape  must  be  committed,  and  a  great  man}'  rapes  must  be 
constantly  taking  place  without  either  of  the  parties  having  the  least 
idea  of  the  fact.  The  question  raised  is  of  ver}'  wide  application.  It 
does  not  end  with  the  particular  contagion  under  consideration,  but 
embraces  contagion  communicated  by  persons  having  small-pox  or 
scarlet  fever,  or  other  like  diseases  quite  free  from  the  sexual  element, 
and  whilst  so  afflicted  coming  into  a  personal  contact  with  others  which 
would  certainly  have  been  against  the  will  of  those  touched  had  they 
known  the  truth.  This  species  of  assault,  if  assault  it  be,  must  have 
been  of  much  longer  standing  than  the  four  centuries  I  have  alluded 
to,  and  it  involves  no  considerations  depending  upon  the  social  status 
of  women,  yet  no  one  has  ever  been  prosecuted  for  an  assault  so  con- 
stituted. But  upon  this  point  I  desire  only  to  express  my  concurrence 
in  the  observations  of  my  brother  Stephen,  which  I  have  had  the 
opportunity  of  reading.  I  wish  to  observe  that,  if  an  assault  can  be 
committed  b}'  coition  to  which  consent  has  been  procured  by  suppres- 
sion of  the  truth  or  misrepresentation  as  to  the  state  of  health  of  one 
of  the  parties,  questions  of  the  kind  I  have  indicated  will  be  triable, 
may  be  tried  now  at  petty  sessions.  The  observation  is  not,  of  course, 
conclusive ;  but  it  is  well  to  appreciate  whither  a  conviction  in  the 
present  case  must  lead  us,  not  only  as  regards  the  subject-matter  of 
the  criminal  law,  but  as  to  the  tribunals  which  will  have  to  administer 


SECT.  III.]  REGINA   V.   CLARENCE.  445 

it  When  the  Act  of  18GI  (24  &  25  Vict.  c.  100)  was  passed,  it  had 
never  occuned  to  auy  huiiuiii  being,  so  far  as  our  legal  history  affords 
any  clue,  that  the  circumstances  now  under  consideration  constituted 
an  assault.  The  term  is  as  old  as  any  in  our  law,  but  it  had  never 
been  so  applied.  The  doctrine  owes  its  origin  to  the  remarks  of 
Willes,  J.,  at  the  Taunton  Assizes,  held  in  186G,  and  reported  in  Reg. 
V.  Bennett  (4  F.  &  ¥.  1105).  It  was  pointed  out  in  the  Irish  case  of 
llegarty  v.  Shine  (Ir.  L.  Rep.  2  C.  L.  273  ;  C.  A.  Ir.  L.  Rep.  4  C.  L. 
288)  that  the  conviction  might  be  upheld,  on  the  ground  that  the  girl 
was,  as  she  alleged,  asleep  when  intercourse  took  place,  and  therefore 
gave  no  consent.  In  spite  of  all  my  respect  for  everything  that  fell 
from  the  lips  of  that  very  great  lawyer,  I  am  compelled  to  think  that 
it  was  a  case  in  which  he  strained  the  law  for  the  purpose  of  punishing 
a  great  wrong,  and  I  confess  myself  unable  to  follow  his  view,  that 
the  thing  done  in  that  case  might  be  an  assault  and  yet  not  a  rape. 
Were  it,  however,  possible  that  the  mere  words  of  the  section  would 
apply  to  the  transaction  in  question,  and  that  it  were  capable  of  being 
described  as  an  assault,  I  am  still  of  opinion  that  the  context  shows 
that  sexual  crimes  were  intended  to  be  dealt  with  as  a  class  b}'  them- 
selves, the  only  rational  way  of  legislating  upon  such  a  subject ;  and  if 
the  letter  of  the  section  could  be  satisfied  by  the  present  circumstances, 
there  never  was  a  case  to  which  the  maxim  Qui  lueret  in  liter  a  hmret 
in  cortice  more  emphaticall}'  applied. 

Hawkins,  J.,  read  the  following  judgment :  I  am  of  opinion  that 
the  prisoner  was  rightly  convicted  upon  both  counts  of  the  indictment. 
The  first  count  was  framed  under  sect.  20  of  24  &  25  Vict.  c.  100,  and 
charged  the  prisoner  with  "unlawfully  and  maliciously  inflicting  griev- 
ous bodily  harm  "  upon  Selina  Clarence.  The  second  count  was  framed 
under  sect.  47  of  the  same  Act,  and  charged  him  with  an  "assault" 
upon  the  said  Selina  Clarence,  "occasioning"  her  "actual  bodily 
harm."  At  the  time  of  the  committing  of  the  offences  charged  Selina 
Clarence  was  and  still  is  the  wife  of  the  prisoner.  At  that  time  the 
prisoner  was  suffering  from  gonorrhoea,  as  he  knew,  but  his  wife  was 
ignorant  of  the  fact.  In  this  condition  of  things  the  prisoner  had 
sexual  intercourse  with  his  wife,  and  in  so  doing  communicated  to  her 
his  disease,  and  thereby  caused  her  grievous  bodily  harm.  It  must 
also  be  taken  as  a  fact  that,  had  the  prisoner's  wife  known  that  he  was 
so  suffering  she  would  have  refused  to  submit  to  such  intercourse.  On 
the  prisoner's  behalf  it  was  contended  that  the  conviction  was  wrong 
upon  several  grounds  :  first,  that  the  injury  caused  to  the  wife  was  the 
result  of  a  lawful  act,  viz.,  the  sexual  communion  of  a  husband  with 
his  wife ;  secondly,  that  the  charge  in  the  first  count  involved,  and  that 
in  the  second  count  was  based  on,  an  assault,  and  that  no  assault 
conld  bo  committed  by  a  husband  in  merely  exercising  his  marital 
riglit  upon  the  person  of  his  wife  ;  and,  thirdly,  that  the  sections  of  the 
statute  under  which  the  indictment  was  framed  had  no  application  to 
Buch  circumstances  as  those  above  mentioned.     About  the  unlawfulness 


446  BEGINA  V.    CLARENCE.  [cHAP.  XIL 

and  maliciousness  of  the  prisoner's  conduct  it  seems  to  me  impossible 
to  raise  a  doubt.  It  has  long  been  established  by  authority  that,  if  a 
husband  knowingly  communicates  to  his  wife  a  venereal  disease,  such 
misconduct  amounts  to  legal  cruelty,  and  is  ground  for  judicial  separa- 
tion ;  and,  in  the  absence  of  evidence  to  the  contrary,  it  may  be  pre- 
sumed tliat  a  man  suffering  under  venereal  disease  knows  it,  and  knows 
also  that,  if  he  has  communion  with  his  wife,  he  will  in  all  human 
probability  communicate  his  malady  to  her  (see  Brown  v.  Brown,  L. 
Rep.  1  P.  &  D.  46).  It  is  equally  clear  that  wilfully  to  do  an  unlawful 
act  to  the  prejudice  of  another  is  to  do  it  maliciouslj'.  We  have,  then, 
these  elements  established,  grievous  bodily  harm  unlawfully  and 
maliciously  caused.  ...  I  proceed  now  to  consider  the  question 
whether  there  was  in  fact  an  assault  by  the  prisoner  on  his  wife  occa- 
sioning her  either  grievous  or  actual  bodily  harm.  I  answer  this 
question  also  in  the  affirmative.  By  the  marriage  contract  a  wife  no 
doubt  confers  upon  her  husband  an  irrevocable  privilege  to  have  sexual 
intercourse  with  her  during  such  time  as  the  ordinary  relations  created 
by  such  contract  subsist  between  them.  For  this  reason  it  is  that  a 
husband  cannot  be  convicted  of  a  rape  committed  by  him  upon  the 
person  of  his  wife.  But  this  marital  privilege  does  not  justify  a  hus- 
band in  endangering  his  wife's  health  and  causing  her  grievous  bodily 
harm  bj'  exercising  his  marital  privilege  when  he  is  suffering  from 
venereal  disorder  of  such  a  character  that  the  natural  consequence  of 
such  communion  will  be  to  cominunicate  the  disease  to  her.  Lord 
Stowell,  in  Popkin  v.  Popkin,  cited  in  Durant  v.  Durant  (1  Hagg.  Eccl. 
Rep.  767),  said  :  "  The  husband  has  a  right  to  the  person  of  his  wife, 
but  not  if  her  health  is  endangered."  So,  to  endanger  her  health, 
and  cause  her  to  suffer  from  loathsome  disease  contracted  through  his 
own  infidelity  cannot,  by  the  most  liberal  construction  of  his  matri- 
monial privilege,  be  said  to  fall  within  it ;  and,  although  I  can  cite  no 
direct  authority  upon  the  subject,  I  cannot  conceive  it  possible  seri- 
ousl}^  to  doubt  that  a  wife  would  be  justified  in  resisting  by  all  means 
in  her  power  —  nay,  even  to  the  death,  if  necessary  —  the  sexual  em- 
braces of  a  husband  suffering  from  such  contagious  disorder.  In  my 
judgment,  wilfuU}^  to  place  his  diseased  person  in  contact  with  hers 
■without  her  express  consent  amounts  to  an  assault.  It  has  been 
argued  that,  to  hold  this,  would  be  to  hold  that  a  man  who,  suffering 
from  gonorrhoea,  has  communion  with  his  wife  might  be  guilt}'  of  the 
crime  of  rape.  I  do  not  think  this  would  be  so.  Rape  consists  in  a 
man  having  sexual  intercourse  with  a  woman  without  her  consent,  and 
the  marital  privilege  being  equivalent  to  consent  given  once  for  all  at 
the  time  of  mairiage,  it  follows  that  the  mere  act  of  sexual  communion 
is  lawful ;  but  there  is  a  wide  difference  between  a  simple  act  of  com- 
munion which  is  lawful  and  an  act  of  communion  combined  with  infec- 
tious contagion  endangering  health  and  causing  harm  which  is  unlawful. 
It  may  be  said  that,  assuming  a  man  to  be  diseased,  still,  as  he  cannot 
have  communion  with  his  wife  without  contact^  the  communication  of 


SECT.  III.]  KEGINA   V.   CLARENCE.  447 

the  disease  is  the  result  of  a  lawful  act,  and  therefore  cannot  be  crim- 
inal.    My  reply  to  tliis  argument  is  lliat  if  a  person,  having  a  privilege 
of  which  he  may  avail  himself  or  not  at  his  will  and  pleasure,  cannot 
exercise  it  witliout  at  the  same  time  doing  something  not  included  in 
this  privilege,  and  which   is   unlawful  and  dangerous  to  another,  he 
must  either  forego  his  privilege  or  take  the  consequences  of  his  unlaw- 
ful conduct.     I  may  further  illustrate   my  view  upon  this  part  of  the 
case  by  applying,  by  way  of  test,  to  an  indictment  for  assault  the  old 
form  of  civil  pleadings.     Thus  :    Indictment  for  an  assault ;    plea  of 
justification,  that  the  alleged  assault  was  the  having  sexual  communion 
with  the  prosecutrix,  she  being  the  prisoner's  wife ;   new  assignment, 
that  the  assault  charged  was  not  that  charged  in  the  plea,  but  the  un- 
lawful and  malicious  contact  of  her  person  witli  dangerous  and  contagious 
disease.     What  possible  justification  could  be  pleaded  or  answer  given 
to  such  new  assignment?     1  ought  perhaps  to  state  that,  even  if  to  hold 
a  husband  liable  for  an  assault  under  such  circumstances  would  be  to 
subject  him  also  to  a  charge  of  rape,  the  opinion  I  have  above  expressed 
would  not  be  changed.     No  jury  would  be  found  to  convict  a  husband 
of  rape  on  his  wife  except  under  very  exceptional  circumstances,  any 
more  than  they  would  convict  of  larceny  a  servant  who   stealthily 
appropriated  to  her  own  use  a  pin  from  her  mistress's  pincushion.     I 
can,  however,  readily  imagine  a  state  of  circumstances  under  which  a 
husband  might  deservedly  be  punished  with  the  penalty  attached  to 
rape,  and  a  person  committing  a  theft  even  of  a  pin  to  the  penalty 
attached  to  larceny.     The  cases  put  of  a  person  suffering  from  small- 
pox, diphtheria  or  any  other  infectious  disorder,  thoughtlessly  giving  a 
wife  or  child  a  mere  aflectionate  kiss  or  shake  of  the  hand  from  which 
serious  consequences  never  contemplated  ensued,  seem  to  me  cases  ia 
which  it  is  impossible  to  suppose  any  criminal  prosecution  would  be 
tolerated,  or  could,  if  tolerated,  result  in  a  conviction  ;    but  I   can 
picture  to  myself  a  state  of  things  in  which  a  kiss  or  shake  of  the 
hand  given  by  a  diseased  person,  maliciously  with  a  view  to  communi- 
cate his  disorder,  might  well  form  the  subject  of  criminal  proceedings. 
I  will  not,  however,  stop  to  discuss  such  imaginary  cases  further.     The 
case  of  Reg.  v.  Bennett  (4  F.   &  F.   1105),  decided  in  1866,  is  an 
authority  directly  in  support  of  the  view  I  have  taken.     The  indictment 
was  for  an  indecent  assault  on  a  girl  who  had  consented  to  sleep  with 
the  prisoner,  who  had  connection  with  her,  and  communicated  to  her  a 
foul  disease.     Willes,  J.,  before  whom  the  case  was  tried,  in  summing- 
up,  told  the  jury  that,  though  it  would  have  been  impossible  to  have 
established  rape,  yet  if  the  girl  did  not  consent  to  the  aggravated  cir- 
cumstances—  i.  (?.,  to  connection  with  a  diseased  man  —  his  act  would 
be  an  assault.     Willes,  J.,  no  doubt,  according  to  the  report,  based  his 
observations  upon  the  tule  that  fraud  vitiates  consent ;  but  it  is  clear 
his  mind  was  alive  to  the  point  I  have  been  considering,  viz.,  that, 
though  there  might  be  such  consent  to  sexual  intercourse  as  to  make 
the  connection   no  rape,  nevertheless,  the  infectious   contact   might 


448  REGINA  V.   CLARENCE.  [CHAP.  XII. 

amount  to  an  assault.  See  also  Hegarty  v.  Shine,  14  Cox  C.  C.  124 ; 
s.  c.  C.  A.  ib.  145 ;  and  Reg.  v.  Sinclair,  13  Cox  C.  C.  28.  In  dealing 
with  this  case  my  judgment  is  not  based  upon  the  doctrine  that  fraud 
vitiates  consent,  because  I  do  not  think  that  doctrine  applies  in  the 
case  of  sexual  communion  between  husband  and  wife.  The  sexual 
communion  between  them  is  by  virtue  of  the  irrevocable  privilege  con- 
ferred once  for  all  on  the  husband  at  the  time  of  the  marriage,  and 
not  at  all  b}'  virtue  of  a  consent  given  upon  each  act  of  communion,  as 
is  the  case  between  unmarried  persons.  My  judgment  is  based  on  the 
fact  that  the  wrongful  act  charged  against  the  prisoner  was  not  involved 
in  or  sanctioned  by  his  marital  privilege,  and  was  one  for  which  no 
consent  was  ever  given  at  all.  For  this  reason  it  is  unnecessary  to 
discuss  or  express  any  opinion  upon  the  various  cases  cited  during  the 
argument  relating  to  connection  obtained  by  fraud,  and  I  accordingly 
abstain  from  doing  so.  Another  argument  used  for  the  prisoner  was 
that  such  cases  as  the  present  were  not  contemplated  by  the  statute 
under  which  he  was  indicted,  and  it  was  also  said  that,  if  it  had  been 
intended  that  the  communication  of  a  venereal  disease  to  a  woman 
during  an  act  of  sexual  intercourse,  consented  to  b}'  her,  should  be 
punishable  as  a  crime,  some  special  enactment  to  that  effect  would 
have  been  introduced  into  one  or  other  of  the  Acts  of  Parliament  relat- 
ing to  women  and  offences  against  them.  This  is  an  argument  to 
which  I  attach  no  weight,  assuming  the  facts  bring  the  case  within  the 
fair  interpretation  of  the  sections  to  which  I  have  referred.  Moreover, 
I  may  point  out  that  Reg.  v.  Bennett  (4  F.  &  F.  1105),  to  which  I 
have  referred,  was  tried  in  the  year  1866,  and  it  is  strange,  if  the 
law  as  there  laid  down  was  thought  to  be  contrary  to  the  law  of 
the  land  or  to  the  intention  of  the  Legislature,  that  in  no  subse- 
quent legislation  during  the  twent3'-two  years  which  have  since  elapsed 
has  any  enactment  been  introduced  in  which  anj'  expression  is  to 
be  found  indicative  of  a  disapproval  of  that  decision  or  that  the 
intention  of  the  statute  was  at  variance  with  it.  I  think  the  Legisla- 
ture contemplated  the  punishment  of  all  grievous  bodily  harm,  however 
caused,  if  caused  unlawfully  and  maliciously ;  and  I  cannot  bring  my 
mind  for  an  instant  to  believe  that,  even  had  the  circumstances  before 
us  been  present  to  the  minds  of  the  framers  of  the  Act,  they  would 
have  excluded  from  its  operation  an  offence  as  cruel  and  as  contrary'  to 
the  obligation  a  man  owes  to  his  wife  to  protect  her  from  harm  as  can 
well  be  conceived.  It  has  been  urged  that  the  case  of  husband  and 
wife  does  not  differ  from  that  of  unmarried  persons,  and  that  to  affirm 
this  conviction  would  tend  to  encourage  undesirable  prosecutions  where 
disease  has  been  communicated  during  illicit  communion.  I  do  not  by 
any  means  assent  to  these  propositions.  I  think  the  two  cases  are 
substantially  different.  The  wife  submits  to  her  husband's  embraces 
because  at  the  time  of  marriage  she  gave  him  an  irrevocable  right  to 
her  person.  The  intercourse  which  takes  place  between  husband  and 
wife  after  marriage  is  not  by  virtue  of  any  special  consent  on  her  part, 


SECT.  III.]  REGINA   V.   CLARENCE.  449 

but  in  mere  submission  to  an  obligation  imposed  upon  her  by  law.  Con- 
sent is  immaterial.  In  the  case  of  unmarried  persons,  however,  consent 
is  necessary  previous  to  every  act  of  cumnninion,  and  if  a  common 
prostitute  were  to  charge  with  a  criminal  ofTence  a  man  who,  in  liavirig 
had  connection  with  her  had  infected  her  with  disease,  few  juries  would 
under  ordinary  circumstances  hesitate  to  find  that  each  party  entered 
into  the  immoral  communion  tacitly  consenting  to  take  all  risks.  In 
the  case  of  women  other  tlian  prostitutes,  the  circumstances  of  each 
particular  case  would  have  to  be  considered,  and  the  question  how  far 
fraud  vitiates  consent  to  such  communion  would  also  have  to  be  dealt 
with.  In  such  cases,  too,  shame  would  deter  most  decent  women  from 
appealing  to  the  law  ;  and,  if  a  man  were  the  sufferer,  seldom  would  he 
incur  the  ridicule  and  exposure  which  would  be  brought  upon  him. 
Considering  how  few  prosecutions  have  been  instituted  for  such  causes 
since  the  decision  in  Reg.  v.  Bennett  (4  F.  &  F.  1105),  and  enter- 
taining moreover,  as  I  do,  a  doubt  whether  anj-  person,  man  or 
woman,  could,  as  against  the  public  interests,  consent  to  the  inflic- 
tion of  grievous  bodily  harm,  so  as  to  give  a  legal  defence  to  a  crim- 
inal prosecution,  although  such  consent  might  afford  a  good  defence 
to  a  civil  action,  I  do  not  see  any  reason  for  such  fears  on  the  subject 
as  have  been  entertained.  Anyhow  the}-  cannot  affect  the  law.  Forti- 
fied in  my  opinion,  as  I  believe  myself  to  be,  by  the  plain  words  of  the 
statute,  and  b}'  the  authorit}'  of  Willes,  J.,  one  of  the  greatest  and  most 
accurate  lawyers  of  modern  times,  I  have  arrived  at  the  conclusion 
that  this  conviction  is  right  and  in  accordance  with  the  law,  and  1  can- 
not therefore  be  a  part}'  to  a  judgment  which  in  effect  would  proclaim 
to  the  world  that  by  the  law  of  England  in  this  3'ear  1888  a  man  may 
deliberateh',  knowingly,  and  maliciously  perpetrate  upon  the  body  of 
his  wife  the  abominable  outrage  charged  against  the  prisoner,  and  yet 
not  be  punishable  criminallj-  for  such  atrocious  barbarit}'.  I  may  state 
that  this  judgment  has  been  read  by  my  brother  Da}-,  who  requests  me 
to  say  that  he  thoroughly  concurs  in  it.^ 

^  Smith,  Stephen,  and  Manistt,  JJ.,  Pollock,  B.,  and  Coleridge,  C.  J.,  also 
delivered  opinions  against  the  conviction.  Mathew  and  Grantham,  JJ.,  and 
HiiDDLEaroN,  B.,  agreed.  Field,  J.,  also  delivered  an  opinion  supporting  the  con- 
viction, and  Day  and  Charles, JJ.,  agreed.  See,  contra,  Keg.  v.  Bennett,  4  F.  &  F. 
H05;  Reg.  v.  Sinclair,  13  Cox  C.  C.  28.  — Ed. 


30 


450  COMMONWEALTH   V.   WHITE.  [CHAP.  XIL 


COMMONWEALTH  v.  WHITE. 
Supreme  Judicial  Court  of  Massachusetts.     1872. 

{Reported  110  Massachusetts,  407.] 

Complaint  to  a  trial  justice,  alleging  that  the  defendant  "  with  force 
and  arms  in  and  upon  the  body  of  Timothy  Harrington  an  assault  did 
make,  and  him  did  then  and  there  threaten  to  shoot  with  a  gun,  which 
he  then  and  there  pointed  and  aimed  at  said  Harrington." 

At  the  trial,  on  appeal,  in  the  Superior  Court,  before  Pitman  J.,  the 
Commonwealth  introduced  evidence  tending  to  show  that  the  defend- 
ant was  driving  in  a  wagon  along  a  highway,  which  Harrington,  one 
Sullivan,  and  others  were  repairing;  that  Sullivan  called  out  to  the 
defendant  to  drive  in  the  middle  of  the  road ;  that  the  defendant  made 
an  offensive  reply ;  that  thereupon  Sullivan  came  toward  the  defend- 
ant and  asked  him  what  he  meant ;  that  Sullivan  and  Harrington  were 
about  fifteen  feet  from  the  defendant,  who  was  moving  along  all  the 
time  ;  that  the  defendant  took  up  a  double-barrel  gun  which  he  had  in 
the  wagon,  pointed  it  towards  Sullivan  and  Harrington,  took  aim  at 
them,  and  said,  "I  have  got  something  here  that  will  pick  the  eyes 
of  you."  This  was  all  the  evidence  of  declarations  or  threats  of  the 
defendant  at  the  time  of  the  alleged  assault. 

Sullivan  testified  that  he  had  no  fear  and  did  not  suppose  the  de- 
fendant was  going  to  do  any  harm  ;  but  there  was  evidence  tending  to 
show  that  Harrington  was  put  in  fear.  The  defendant  testified  that 
the  gun  was  not  loaded. 

The  defendant  asked  the  judge  to  rule  that  the  complaint  could 
not  be  sustained  because  the  Commonwealth  had  failed  to  prove  the 
offence  as  alleged  in  the  complaint ;  but  the  judge  refused  so  to  rule, 
and  ruled  that  it  was  not  necessary  to  prove  a  threat  to  shoot  as  set 
forth  in  the  complaint. 

The  defendant  also  asked  the  judge  to  instruct  the  jury  "that  the 
facts  testified  to  did  not  constitute  an  assault;  that  at  the  time,  the 
defendant  must  have  had  an  intention  to  do  some  bodily  barm  to  Har- 
rington and  the  present  ability  to  carry  his  intention  into  execution  ; 
and  that  the  whole  evidence  would  not  warrant  the  jury  in  finding  a 
verdict  against  the  defendant."  But  the  judge  refused  so  to  instruct 
the  jury,  and  instructed  them  "  that  an  assault  is  any  unlawful  physical 
force  parti}'  or  fulh*  put  in  motion,  which  creates  a  reasonable  appre- 
hension of  immediate  physical  injury;  and  that  if  the  defendant, 
within  shooting  distance,  menacingly  pointed  at  Harrington  a  gun, 
which  Harrington  had  reasonable  cause  to  believe  was  loaded,  and 
Harrington  was  actually  put  in  fear  of  immediate  bodily  injury  there- 
fiom,  and  the  circumstances  of  the  case  were  such  as  ordinarily  to 
induce  such  fear  in  the  mind  of  a  reasonable  man,  that  then  an  assault 


SKCT.  III.]  COMMONWEALTH    V.    STRATTON.  451 

■was  committed,  whether  the  <^iiii  was  in  fact  loaded  or  not."  The  jury 
returned  a  verdict  of  guilt3',  and  the  defendant  alleged  exceptions. 

Wklls,  J.'  The  instructions  required  the  jury  to  find  that  the  acts 
of  the  defendant  were  done  "menacingly;"  that  Harrington  had 
reasonable  cause  to  believe  the  gun  pointed  at  him  was  loaded,  and 
was  actually  put  in  fear  of  immediate  bodily  injury  therefrom  ;  and 
that  the  circumstances  were  such  as  ordinarily  to  induce  such  fear  in 
the  mind  of  a  reasonable  man. 

Instructions  in  accordance  with  the  second  ruling  prayed  for  would 
have  required  the  jury  also  to  find  that  the  defendant  had  an  intention 
to  do  some  bodily  harm  and  the  present  ability  to  carry  his  intention 
into  execution.  Taking  both  these  conditions  literally,  it  is  diflicult  to 
see  how  an  assault  could  be  committed  without  a  battery  resulting. 

It  is  not  the  secret  intent  of  the  assaulting  party  nor  the  undisclosed 
fact  of  his  ability  or  inability  to  commit  a  battery,  that  is  material ;  but 
wliat  his  conduct  and  the  attending  circumstances  denote  at  the  time 
to  the  party  assaulted.  If  to  him  they  indicate  an  attack,  he  is  justi- 
fied in  resorting  to  defensive  action.  The  same  rule  applies  to  the 
proof  necessary  to  sustain  a  criminal  complaint  for  an  assault.  It  is 
the  outward  demonstration  that  constitutes  the  mischief  which  is  pun- 
ished as  a  breach  of  the  peace.=*  Exceptions  overruled. 


COMMONWEALTH  v.   STRATTON. 
Supreme  Judicial  Court  of  Massachusetts.     1873. 

[Reported  1 14  Massachusetts,  303.] 

Inpictments,  each  charging  that  the  defendant,  upon  a  certain  young 
woman  in  the  indictment  named,  made  an  assault  and  administered  to 
her  a  large  quantity  of  cantharides,  "  the  same  being  ...  a  deleterious 
and  destructive  drug,"  with  intent  to  injure  her  health,  wherebv  she 
became  sick,  and  her  life  was  despaired  of.  Both  cases  were  tried 
together. 

It  appeared  at  the  trial  in  the  Superior  Court,  before  Devens,  J., 
that  the  defendant,  in  company  with  another  young  man,  called  upon 
the  young  women  in  the  indictments  named,  and  during  the  call  offered 
them  some  figs,  which  they  ate,  they  having  no  reason  to  suppose  that 
the  figs  contained  any  foreign  substance ;  that  a  few  hours  after,  both 
young  women  were  taken  sick,  and  suflTered  pain  for  some  hours  ;  that 
the  defendant  and  his  companion  had  put  into  the  figs  something  they 

*  Argiimentg  of  counsel  and  part  of  the  opinion  are  omitted. 

2  Ace.  State  v.  Shepard,  10  la.  126;  State  i-.  Smith,  2  Hnmph.  457.  Contra, 
Chapman  v.  State,  78  Ala.  463;  State  v.  Sears,  86  Mo.  169;  State  v.  Godfrey,  17  Ot 
300;  and  see  a  learned  note,  2  Green  Cr.  L.  Rep.  271.  —Ed. 


452  COMMONWEALTH   V.   STRATTON.  [CHAP.  XII. 

had  procured  by  the  name  of  "love  powders,"  which  was  represented 
by  the  person  of  whom  they  got  it  to  be  perfectly  harmless. 

There  was  evidence  that  one  of  the  ingredients  of  these  powders  was 
cantharides,  and  that  this  would  tend  to  produce  sickness  like  that 
■which  the  young  women  suffered. 

The  Court  instructed  the  jury  that  if  it  was  shown  beyond  a  reason- 
able doubt  "■  that  the  defendant  delivered  to  the  women  a  harmless  arti- 
cle of  food,  as  figs,  to  be  eaten  by  them,  he  well  knowing  that  a  foreign 
substance  or  drug  was  contained  therein,  and  conceaUng  the  fact,  of 
which  he  knew  the  women  to  be  ignorant,  that  such  foreign  substance 
or  druo-  was  contained  therein,  and  the  women  eating  thereof  by  the  in- 
^^tation  of  the  defendant  were  iujured  in  health  by  the  deleterious  char- 
acter of  the  foreign  substance  or  drug  therein  contained,  the  defendant 
should  be  found  guilty  of  an  assault  upon  them,  and  this,  although  he 
did  not  know  the  foreign  substance  or  drug  was  deleterious  to  health, 
had  been  assured  that  it  was  not,  and  intended  only  to  try  its  effect 
upon  them,  it  having  been  procured  by  him  under  the  name  of  a  '  love 
powder,'  and  he  being  ignorant  of  its  qualities  or  of  the  effects  to  be 
expected  from  it." 

The  jury  found  the  defendant  guilty  of  a  simple  assault  in  each  case, 
and  he  alleged  exceptions. 

W.  Colburn,  for  the  defendant. 

C.  B.  Train,  Attorney-General,  for  the  Commonwealth. 

Wells,  J.  All  the  judges  concur  that  the  evidence  introduced  at 
the  trial  would  warrant  a  conviction  of  assault  and  battery  or  for  a  sim- 
ple assault,  which  it  includes  ;  and  in  the  opinion  of  a  majority  of  the 
court,  the  instructions  given  required  the  jury  to  find  all  that  was  es- 
sential to  constitute  the  offence  of  assault  and  battery. 

The  jury  must  have  found  a  physical  injury  inflicted  upon  another 
person  by  a  voluntary  act  of  the  defendant  directed  toward  her,  which 
was  without  justification  and  unlawful.  Although  the  defendant  was 
i^ynorant  of  the  qualities  of  the  drug  he  administered  and  of  the  effects 
to  be  expected  from  it,  and  had  been  assured  and  believed  that  it  was 
not  deleterious  to  health,  yet  he  knew  it  was  not  ordinary  food,  that 
the  t^irl  was  deceived  into  taking  it,  and  he  intended  that  she  should 
be  induced  to  take  it  without  her  conscious  consent,  by  the  deceit 
which  he  practised  upon  her.  It  is  to  be  inferred  from  the  statement 
of  the  case  that  he  expected  that  it  would  produce  some  effect.  In  the 
most  favorable  aspect  of  the  facts  for  the  defendant  he  administered 
to  the  girl,  without  her  consent  and  by  deceit,  a  drug  or  *'  foreign  sub- 
stance," of  the  probable  effect  of  which  he  was  ignorant,  with  the  ex- 
press intent  and  purpose  "  to  try  the  effect  of  it  upon  "  her.  This  in 
itself  was  unlawful,  and  he  must  be  held  responsible  for  whatever  effect 
it  produced.  Being  an  unlawful  interference  with  the  personal  rights 
of  another,  calculated  to  result  and  in  fact  resulting  in  physical  injury, 
the  criminal  intent  is  to  be  inferred  from  the  nature  of  the  act  and  its 
actual  results.     3  Bl.  Com.  120 ;  Rex  v.  Long,  4  C.  &  P.  398,  407, 


SECT.  III.]  PEOPLE   V.   MOORE.  453 

note.  The  deceit,  by  means  of  which  the  girl  was  induced  to  take  the 
drug,  was  a  fraud  upon  her  will,  equivalent  to  force  in  overpowering 
it.  Commonwealth  v.  Burke,  105  Mass.  376;  Regina  v.  Lock,  12 
Cox  C.  C.  244;  Regina  v.  Sinclair,   13  Cox  C.  C.  28. 

Although  force  and  violence  are  included  in  all  definitions  of  assault, 
or  assault  and  battery,  yet  where  there  is  physical  injury  to  another 
])erson,  it  is  sufllcient  tliat  the  cause  is  set  in  motion  by  the  defendant, 
or  that  the  person  is  subjected  to  its  operation  by  means  of  any  act  or 
control  which  the  defendant  exerts.  In  3  Chit.  Crim.  Law,  799,  is  a 
count,  at  common  law,  for  an  assault  with  drugs.  P'or  other  instances 
of  assault  and  battery  without  actual  violence  directed  against  the  per- 
son assaulted,  see  1  Gabbett's  Grim.  Law,  82  ;  Rose.  Crira.  Ev.  (8th 
ed.)  296  ;  3  Bl.  Cora.  120  and  notes ;  2  Greeul.  Ev.  §  84. 

If  one  should  hand  an  explosive  substance  to  another  and  induce 
him  to  take  it  b}'  misrepresenting  or  concealing  its  dangerous  qualities, 
and  the  other,  ignorant  of  its  character,  should  receive  it  and  cause  it 
to  explode  in  his  pocket  or  hand,  and  should  be  injured  by  it,  the  offend- 
ing party  would  be  guilty  of  a  battery,  and  that  would  necessarily  in- 
clude an  assault ;  although  he  might  not  be  guilty  even  of  an  assault, 
if  the  substance  failed  to  explode  or  failed  to  cause  an}'  injur}'.  It 
would  be  the  same  if  it  exploded  in  his  mouth  or  stomach.  If  that 
which  causes  the  injury  is  set  in  motion  by  the  wrongful  act  of  the  de- 
fendant, it  cannot  be  material  whether  it  acts  upon  the  person  injured 
externally  or  internall}',  by  mechanical  or  chemical  force. 

In  Regina  v.  Button,  8  C.  &  P.  660,  one  who  put  Spanish  flies  into 
coffee  to  be  drunk  by  another  was  convicted  of  an  assault  upon  the  per- 
son who  took  it,  although  it  was  done  "  only  for  a  lark."  This  decision 
is  said  to  have  been  overruled  in  England.  Regina  v.  Dilworth,  2 
Mood.  &  Rob.  531  ;  The  Queen  v.  Walkden,  1  Cox  C.  C.  282 ;  Re- 
gina V.  Hanson,  2  C.  &  K,  912.  In  the  view  of  the  majorit}'  of  the 
court,  the  last  onh'  of  these  three  cases  was  a  direct  adjudication,  and 
that  entirely  upon  the  authorit}*  of  mere  dicta  in  the  other  two  and 
without  any  satisfactorj'  reasoning  or  statement  of  grounds ;  and  the 
earlier  decision  in  Regina  v.  Button  is  more  consistent  with  general 
principles,  and  the  better  law.^  Exceptions  overruled. 


PEOPLE  V.   MOORE. 
Supreme  Court  of  New  York.    1888. 

[Reported  50  Hun,  356.] 

Landon,  J.'    The  material  facts  are  not  in  dispute.    The  main  ques- 
tions are  whether  the  conceded  facts  show  that  the  defendant  com- 

1  Ace.  Carr  i-.  State  (Ind.),  34  N.  E.  533.  —Ed. 

'  Only  so  much  of  the  opinion  is  given  as  involres  the  question  of  assault. 


454  PEOPLE  V.    MOORE.  [CHAP.  XII. 

mitted  an  assault  upon  the  complainant,  and  if  so,  whether  the  assault 
was  justifiable. 

The  defendant  was  in  the  employ  of  the  Burden  Ore  and  Iron 
Company.  This  company  owns  a  large  tract  of  land  in  Livingston, 
Columbia  count}*,  and  has,  in  the  development  of  its  business,  created 
upon  its  lands,  the  so-called  village  of  Burden.  This  consists  of  the 
company's  offices,  shops,  sixt}'  or  seventy-  tenement-houses,  occupied 
b}-  its  servants  and  their  families,  a  public  store,  schoolhouse  and 
chapel.  A  post-office  is  established  there.  An  open  road  or  stx'eet, 
wholly  upon  the  company's  lands,  leads  from  the  public  highway  to 
the  village.  The  tenement-houses  of  the  village  are  in  rows  upon  both 
sides  of  the  village  streets.  All  these  streets  and  roads  are  open,  and 
to  every  appearance  are  public  highways.  The  company,  however, 
retains  title  to  the  land,  and  the  public  authorities  have  not  claimed 
or  assumed  an}-  authorit}'  over  them. 

The  complainant  Snyder  was  a  peddler  of  milk  and  vegetables  and 
had  customers  for  his  supplies  in  this  village.  The  corapan}'  desired 
him  to  discontinue  his  traffic  in  the  village,  and  to  give  it  to  another 
person.  It  notified  him  that  the  village  and  its  streets  were  its  private 
propert}',  and  that  he  must  not  sell  milk  there  any  more.  He  refused 
to  discontinue.  The  company  directed  the  defendant  to  keep  him  out 
of  the  village,  but  to  use  no  more  force  than  was  necessary  for  the 
purpose,  and  to  be  careful  not  to  do  him  persoual  injury.  The  defend- 
ant, in  pursuance  of  this  direction,  assisted  bj'  one  Ahlers,  on  the  14th 
day  of  March,  1887,  intercepted  Snyder  upon  the  road  leading  from 
the  public  highway'  to  the  village.  Snyder  was  alone,  was  seated  in 
his  sleigh  driving  his  team  of  horses  on  his  way  to  deliver  milk  to  his 
customers,  and  especially  some  apples  which  had  been  ordered  by  one 
of  them.  The  defendant  told  Snyder  he  was  trespassing  and  that  he 
had  orders  to  stop  him.  Snyder  attempted  to  drive  on.  The  defend- 
ant then  seized  the  lines  in  front  of  Snyder's  hands,  told  Ahlers  to 
take  the  horses  by  the  heads  and  turn  them  around,  which  Ahlers 
immediately  did,  the  defendant  at  the  same  time  remarking  that  "  the 
easiest  way  is  the  best  way."  When  the  team  and  sleigh,  with  Snyder 
in  it,  had  been  turned  around,  defendant  barred  the  passage  towards 
the  village  with  an  iron  pipe.     Snyder  thereupon  drove  away. 

Defendant  urges  that  this  was  no  assault,  for  the  reason  that  there 
was  no  intention  to  hurt  Snyder ;  and  that  he  did  not  lay  his  hands 
upon  him.  It  is  plain,  however,  that  the  force  which  he  applied  to 
the  horses  and  sleigh  just  as  eflfectually  touched  the  person  of  Snyder, 
as  if  he  had  taken  him  b}'  his  ears  or  shoulders  and  turned  him  right 
about  face.  The  horses  and  sleigh  were  the  instruments  with  which  he 
directed  and  augmented  his  personal  and  physical  force  against,  and 
upon  the  body  of  Snyder.  Snyder  did  receive  bodil}'  harm.  One 
receives  bodily  harm,  in  a  legal  sense,  when  another  touches  his  person 
against  his  will  with  physical  force,  intentionally  hostile  and  aggressive, 
or  projects  such  force  against  his  person.    Here,  for  the  moment,  Suy- 


SECT.  IV.]  KEGINA  V.    BARROW.  455 

der  was  deprived  by  the  defendant  of  his  own  control  of  his  own  person  ; 
and  he  was  controlled,  intimidated,  and  coerced  by  the  hostile,  aggres- 
sive physical  force  of  the  defendant.  The  oiler  to  prove  that  bodily 
harm  was  not  intended  was  made  in  the  face  of  the  defendant's  testi- 
mony that  he  intended  to  do  just  what  he  did  do.  The  obvious  purpose 
was  to  prove  that  there  was  no  intention  to  wound  or  bruise  the 
defendant,  or  cause  him  physical  pain.  So  long  as  this  was  not 
claimed  or  proved  on  the  part  of  the  prosecution,  disproof  of  it  was 
properly  rejected  for  the  reason  that  such  disproof  would  have  raised 
or  suggested  a  false  and  immaterial  issue,  tending  possibly  to  the 
miscarriage  of  justice. 

We  assume  that  if  Snyder  was  a  trespasser  the  assault  was  justifi- 
able, for  no  more  force  was  used  than  was  reasonably  necessary  to 
eject  him  from  the  premises  ;  but  he  was  not  a  trespasser.  The  streets 
leading  to  and  about  this  village  were  made  and  opened  by  the  Burden 
Iron  and  Ore  Company  for  such  public  use  as  was  incident  to  the 
wants,  convenience,  and  happiness  of  the  people  residing  there.  To 
the  extent  of  this  public  use  the  company  subjected  its  private  property 
to  the  law  which  regulates  public  rights.  Munu  v.  Illinois,  94  U.  S., 
1 13.  No  doubt  it  can  depopulate  its  village  and  restore  its  lands  to 
the  solitude  of  its  exclusive  private  dominion ;  but  as  long  as  it  enjoj'S 
the  benefits  of  public  association  and  communication  it  must  accept 
the  burdens  necessarilj'  and  properly  incident  to  them.  By  reserA'ing 
the  legal  title  to  the  thoroughfares  of  its  village,  it  does  not  reserve 
autocratic  powers  over  the  people  residing  along  them.  To  prevent 
the  members  of  its  communit}'  from  buying  supplies  of  Snyder,  or  of 
an}-  tiadesman  not  nominated  by  the  compan}',  would  be  to  introduce 
a  condition  of  vassalage  inconsistent  with  our  free  institutions.  If 
these  families  may  buy  of  Snyder,  then  he  may  deliver  his  wares  to 
them,  and  use  for  the  purpose  the  appropriate  thoroughfares.  The 
assault  was,  therefore,  not  justifiable. 


SECTION  IV. 

Ila2)e. 

REGINA  V.   BARROW. 
Crown  Case  Reserved.     1868. 

[Reported  L.  R.  1  Crown  Cases  Reserved,  156.] 

The  following  case  was  stated  by  Kelly,  C.  B. :  — 

This  was  an  indictment  for  a  rape.  The  question  is  whether  the 
offence  as  proved  amounted  in  point  of  law  to  a  rape.  This  question 
depended  entirely  upon  the  evidence  of  the  prosecutrix,  Harriet  Gel- 
dart,  which  was  as  follows:  — 


456  EEGINA  V.   BARROW.  [CHAP.  XII. 

"  I  and  m}'  husband  lodge  together  at  "William  Garner's.  We  sleep 
upstairs  on  the  first  floor,  and  were  in  bed  together  on  the  night 
of  Saturda}',  the  21st  of  June.  I  went  to  bed  about  12  o'clock,  and 
about  2  o'clock  on  Sunday  morning  I  was  lying  in  bed,  and  my 
husband  beside  me.  I  had  my  baby  in  m}'  arms,  and  was  between 
waking  and  sleeping.  I  was  completel}'  awakened  by  a  man  having 
connection  with  me,  and  pushing  the  baby  aside  out  of  my  arms.  He 
was  having  connection  with  me  at  the  moment  when  I  completely 
awoke.  I  thought  it  was  my  husband,  and  it  was  while  I  could  count 
five  after  I  completely  awoke  before  I  found  it  was  not  my  husband. 
A  part  of  my  dress  was  over  my  face,  and  I  got  it  off,  and  he  was 
moving  away.  As  soon  as  I  found  it  was  not  my  husband,  I  pulled 
m}'  husband's  hair  to  wake  him.     The  prisoner  jumped  off  the  bed." 

On  cross-examination  she  added,  "  Till  I  got  my  dress  off  my  face  I 
thought  it  was  my  husband.  After  he  had  finished  I  pulled  the  dress 
off  my  face.  I  was  completely  awakened  b}'  the  man  having  connec- 
tion with  me  and  the  baby  being  moved."  On  re-examination  she  said, 
"  The  baby  was  pushed  on  further  into  the  bed." 

The  jurj'  found  this  evidence,  as  I  have  stated  it,  to  be  true. 

Upon  these  facts  the  prisoner's  counsel,  Mr.  Cottinghara,  submitted 
that  the  indictment  was  not  sustained,  and  quoted  1  Russell  on  Crimes, 
ed.  of  1843,  p.  677 ;  Rex  y.  Jackson,  Russ.  &  Ry.  487  ;  Reg.  v.  Saun- 
ders, 8  C.  &  P.  265  ;  Rex  v.  Williams,  8  C.  &  P.  286  ;  Reg.  v.  Camp- 
lin,  1  Den.  C.  C.  89.  Reg.  v.  Fletcher,  8  Cox  C.  C.  131,  was  also 
referred  to. 

I  thought,  especially  on  the  authority  of  the  judgment  delivered  by 
Lord  Campbell  in  Reg.  v.  Fletcher,  8  Cox  C.  C.  131,  that  the  case 
was  made  out,  inasmuch  as  it  was  sufficient  that  the  act  was  done  by 
force  and  without  consent  before  or  afterwards ;  that  the  act  itself, 
coupled  with  the  pushing  aside  the  child,  amounted  to  force ;  and  there 
was  certainl}'  no  consent  before,  and  the  reverse  immediately  after- 
wards ;  but  I  reserved  the  point  for  the  Court  of  Criminal  Appeal. 

No  counsel  appeared  on  either  side. 

BoviLL,  C.  J.  We  have  carefully  considered  the  facts  as  stated  in 
this  case.  It  does  not  appear  that  the  woman,  upon  whom  the  oflTence 
was  alleged  to  have  been  committed,  was  asleep  or  unconscious  at  the 
time  when  the  act  of  connection  commenced.  It  must  be  taken,  there- 
fore, that  the  act  was  done  with  the  consent  of  the  prosecutrix,  though 
that  consent  was  obtained  by  fraud.  It  falls,  therefore,  within  the 
class  of  cases  which  decide  that,  where  consent  is  obtained  by  fraud, 
the  act  done  does  not  amount  to  rape. 

Channell,  B.,  Byles,  Blackbukn,  and  Lush,  JJ.,  concurred.* 

Conviction  quashed. 

1  Now,  rape  being  defined  to  be  sexual  connection  with  a  woman  without  her 
consent,  or  without  and  therefore  against  her  will,  it  is  essential  to  consider  what  is 
meant  and  intended  by  consent.  Does  it  mean  an  intelligent,  positive  concurrence  of 
the  will  of  the  woman,  or  is  the  negative  absence  of  dissent  sufficient  ?     lu  these  sup 


SECT.  IV.]  COMMONWEALTH   V.   BUEKE.  457 


COMMONWEALTH  v.  BURKE. 
Supreme  Judicial  Coukt  of  MASSACiiusErrs.     1870. 

[Reported  105  Massachusetts,  376.] 

Gray,  J.  —  The  defendant  has  been  indicted  and  convicted  for  aiding 
and  assisting  Dennis  Green  in  committing  a  rape  upon  Joanna  Caton. 
The  single  exception  taken  at  the  trial  was  to  the  refusal  of  the  presid- 
ing judge  to  rule  that  the  evidence  introduced  was  not  suflicient  to 
warrant  a  verdict  of  guilty.  The  instructions  given  were  not  objected 
to,  and  are  not  reported  in  the  bill  of  exceptions.  The  only  question 
before  us  therefore  is,  whether,  under  an^-  instructions  applicable  to 
the  case,  the  evidence  would  support  a  conviction. 

That  evidence,  which  it  is  unnecessary  to  state  in  detail,  was  sufficient 
to  autliorize  the  jury  to  find  that  Green,  with  the  aid  and  assistance  of 
this  defendant,  had  carnal  intercourse  with  Mrs.  Caton,  without  her 
previous  assent,  and  while  she  was,  as  Green  and  the  defendant  both 
knew,  so  drunk  as  to  be  utterlj"  senseless  and  incapable  of  consenting, 
and  with  such  force  as  was  necessary  to  effect  the  purpose. 

All  the  statutes  of  England  and  of  Massachusetts,  and  all  the  text- 
books of  authorit}'  which  have  undertaken  to  define  the  crime  of  rape, 
have  defined  it  as  the  having  carnal  knowledge  of  a  woman  by  force 
and  against  her  will.  The  crime  consists  in  the  enforcement  of  a 
woman  wiUiout  her  consent.  The  simple  question,  expressed  in  the 
briefest  form,  is.  Was  the  woman  willing  or  unwilling?  The  earlier  and 
more  weight v  authorities  show  that  the  words  "  against  her  will,"  in 
the  standard  definitions,  mean  exactly  the  same  thing  as  "  without  her 
consent ; "  and  that  the  distinction  between  these  phrases,  as  applied 
to  this  crime,  which  has  been  suggested  in  some  modern  books,  is 
unfounded. 

gical  cases  it  is  held  that  the  submission  to  an  act  believed  to  be  a  surgical  operation 
does  not  constitute  consent  to  a  sexual  connection,  being  of  a  wholly  different  charac- 
ter ;  there  is  no  consensus  qttoad  hoc.  In  the  case  of  personation  there  is  no  consensus 
quoad  hanc  personam.  Can  it  be  considered  that  there  is  a  consent  to  the  sexual  con- 
nection, it  being  manifest  that,  had  it  not  been  for  the  deceit  or  fraud,  the  woman 
would  not  have  submitted  to  the  act  ?  In  the  cases  of  idioc}',  of  stupor,  or  of  infancy,  it 
is  held  that  there  is  no  legal  consent,  from  the  want  of  an  intelligent  and  discerning  will. 
Can  a  woman,  in  the  case  of  personation,  be  regarded  as  consenting  to  the  act  in  the 
exercise  of  an  intelligent  will  ?  Does  she  con.sent.  not  knowing  the  real  nature  of  the 
act  ?  As  observed  by  Mr.  Curtis,  she  intends  to  consent  to  a  lawful  and  marital  act, 
to  which  it  is  her  duty  to  submit.  Rut  did  she  consent  to  an  act  of  adultery  ?  Are 
not  the  acts  themselves  wholly  different  in  their  moral  nature  ?  The  act  she  per- 
mitted cannot  properly  be  regarded  as  the  real  act  which  took  place.  Therefore  tlie 
connection  was  done,  in  my  opinion,  without  her  con.sent,  and  the  crime  of  rape  was 
constituted.  I  therefore  am  of  opinion  that  the  conviction  should  stand  confirmed. — 
May.  C.  J.,  in  Reg  v.  Dee,  15  Cox  C.  C.  579,  587. 

In  accordance  with  the  principal  case,  see  Reg.  v.  Fletcher,  10  Cox  C  C.  248 ;  Don 
Moran  c.  People,  25  Mich.  356  ;  Wyatt  v.  State,  2  Swan,  394.  —  Ed. 


458  COMMONWEALTH   V.   BURKE.  [CHAP.  XII. 

The  most  ancient  statute  upon  the  subject  is  that  of  Westm.  I.  c.  13, 
making  rape  (which  had  been  a  felony  at  common  law)  a  misdemeanor, 
and  declaring  that  no  man  should  "  ravish  a  maiden  within  age,  neither 
by  her  own  consent,  nor  without  her  consent,  nor  a  wife  or  maiden  of 
full  age,  nor  other  woman,  against  her  will,"  on  penalty'  of  fine  and 
imprisonment,  either  at  the  suit  of  a  party  or  of  the  king.  The  St.  of 
Westm.  II.  c.  34,  ten  j'cars  later,  made  rape  felony  again,  and  provided 
that  if  a  man  should  "ravish  a  woman,  married,  maiden,  or  other 
woman,  where  she  did  not  consent,  neither  before  nor  after,"  he  should 
be  punished  with  death,  at  the  appeal  of  the  party  ;  "  and  likewise, 
where  a  man  ravisheth  a  woman,  married  lady,  maiden,  or  other  woman, 
with  force,  although  she  consent  afterwards,"  he  should  have  a  similar 
sentence  upon  prosecution  in  behalf  of  the  king. 

It  is  manifest  upon  the  face  of  the  Statutes  of  Westminster,  and  is 
recognized  in  the  oldest  commentaries  and  cases,  that  the  words  "  with- 
out her  consent"  and  "against  her  will"  were  used  synonymously; 
and  that  the  second  of  those  statutes  was  intended  to  change  the 
punishment  only,  and  not  the  definition  of  the  crime,  upon  any  indict- 
ment for  rape  —  leaving  the  words  "  against  her  will,"  as  used  in  the 
first  statute,  an  accurate  part  of  the  description.  Mirror,  c.  1,  §  12  ; 
c.  3,  §  21 ;  c.  5,  §  5  ;  30  &  31  Edw.  I.  529-532 ;  22  Edw.  IV.  22 ; 
Staunf  P.  C.  24  a.  Coke  treats  the  two  phrases  as  equivalent ;  for  he 
says  :  "  Rape  is  felony  b}-  the  common  law  declared  by  parliament,  for 
the  unlawful  and  carnal  knowledge  and  abuse  of  any  woman  above  the 
age  of  ten  years  against  her  will,  or  of  a  woman  child  under  the  age  of 
ten  3'ears  with  her  will  or  against  her  will ;  "  although  in  the  latter  case 
the  words  of  the  St.  of  Westm.  I.  (as  we  have  alread}'  seen)  were 
"  neither  by  her  own  consent,  nor  without  her  consent."  3  Inst.  60. 
Coke  elsewhere  repeatedly  defines  rape  as  "the  carnal  knowledge  of  a 
woman  by  force  and  against  her  will."  Co.  Lit.  123  b  ;  2  Inst.  180.  A 
similar  definition  is  given  b}'  Hale,  Hawkins,  Com^'n,  Blackstone,  East, 
and  Starkie,  who  wrote  while  the  Statutes  of  Westminster  were  in  force ; 
as  well  as  by  the  text-writers  of  most  reputation  since  the  St.  of  9  Geo. 

IV.  c.  31,  repealed  the  earUer  statutes,  and,  assuming  the  definition  of 
the  crime  to  be  well  established,  provided  simply  that  "every  person 
convicted  of  the  crime  of  rape  shall  suffer  death  as  a  felon."  1  Hale  P. 
C.  628 ;  1  Hawk.  c.  41  ;  Com.  Dig.  Justices,  S.  2  ;  4  Bl.  Com.  210 ; 
1  East  P.  C.  434 ;  Stark.  Crim.  PI.  (2d  ed.)  77,  431  ;  1  Russell  on 
Crimes  (2d  Am.  ed.),  556,  (7th  Am.  ed.)  675  ;  3  Chit.  Crim.  Law,  810  ; 
Archb.  Crim.  PI.  (10th  ed.)  481 ;  1  Gabbett  Crim.  Law,  831.  There 
is  authority  for  holding  that  it  is  not  even  necessary  that  an  indictment, 
which  alleges  that  the  defendant  "feloniously'  did  ravish  and  carnally 
know  "  a  woman,  should  add  the  words  "  against  her  will."  1  Hale  P. 
C.  632  ;  Harraan  v.  Commonwealth,  12  S.  &  R.  69  ;  Commonwealth 

V.  Fogerty,  8  Gra}',  489.  However  that  ma}'  be,  the  oflfice  of  those 
words,  if  inserted,  is  simplj'  to  negative  the  woman's  previous  consent. 
Stark.  Crim.  PI.  431  note. 


SECT.  IV.]  COMMONWEALTH   V.   BURKE.  459 

In  the  leading  modern  English  case  of  The  Queen  v.  Camplin,  the 
great  majority  of  the  English  judges  held  that  a  man  who  gave  intoxi- 
cating liquor  to  a  girl  of  thirteen,  for  the  purpose,  as  the  jury  found, 
"of  exciting  her,  not  with  the  intention  of  rendering  her  insensible, 
and  then  having  sexual  connection  with  her,"  and  made  her  quite 
drunk,  and,  while  she  was  in  a  state  of  iusensibility,  took  advantage  of 
it,  and  ravished  her,  was  guilty  of  rape.  It  appears  indeed  by  the 
judgment  delivered  by  Patteson,  J.,  in  passing  sentence,  as  reported  iu 
1  Cox  Crim.  Cas.  220,  and  1  C.  &  K.  74G,  as  well  by  the  contem- 
poraneous notes  of  Parke,  B.,  printed  in  a  note  to  1  Denison,  92,  and 
of  Alderson,  B.,  as  read  by  him  in  Tlie  Queen  r.  Page,  2  Cox 
Crim.  Cas.  133,  that  the  decision  was  influenced  by  its  having  been 
proved  at  the  trial  that,  before  the  girl  became  insensible,  the  man 
had  attempted  to  procure  her  consent,  and  had  failed.  But  it  further 
appears  by  those  notes  that  Lord  Denmau,  C.  J.,  Parke,  B.,  and  Pat- 
teson, J.,  thought  that  the  violation  of  any  woman  without  her  con- 
sent, while  she  was  in  a  state  of  insensibility  and  had  no  power  over 
her  will,  by  a  man  knowing  at  the  time  that  she  was  in  that  state, 
was  a  rape,  whether  such  state  was  caused  by  him  or  not ;  for  example, 
as  Alderson,  B.,  adds,  "in  the  case  of  a  woman  insensibly  drunk  iu 
the  streets,  not  made  so  by  the  prisoner."  And  in  the  course  of  the 
argument  this  able  judge  himself  said  that  it  might  be  considered 
/  against  the  general  presumable  will  of  a  woman,  that  a  man  should 
/  Imve  unlawful  connection  with  her.  The  later  decisions  have  estab- 
(  lished  the  rule  in  England  that  unlawful  and  forcible  connection  with  a 
A  woman  in  a  state  of  unconsciousness  at  the  time,  whether  that  state 
'  \has  been  produced  by  the  act  of  the  prisoner  or  not,  is  presumed  to  be 
/  without  her  consent,  and  is  rape.  The  Queen  v.  Ryan,  2  Cox  Crim. 
Cas.  115;  Anon,  by  Willes,  J.,  8  Cox  Crim.  Cas.  134;  Regina  y. 
Fletcher,  ib.  131;  s.  c.  Bell,  63;  Regina  v.  Jones,  4  Law  Times 
(n.  s.)  154;  The  Queen  v.  Fletcher,  Law  Rep.  1  C.  C.  39;  s.  c.  10 
Cox  Crim.  Cas.  248  ;  The  Queen  v.  Barrow,  Law  Rep.  1  C.  C.  156 ; 
8.  c.  11  Cox  Crim.  Cas.  191.  Although  in  Regina  r.  Fletcher,  ^(bi 
supra,  Lord  Campbell,  C.  J.  (ignoring  the  old  authorities  and  the 
repealing  St.  of  9  Geo.  IV.)  unnecessarily  and  erroneously  assumed 
that  the  St.  of  Westm.  II.  was  still  in  force ;  that  it  defined  the  crime 
of  rape ;  and  that  there  was  a  difference  between  the  expressions 
"  against  her  will"  and  "without  her  consent,"  in  the  definitions  of 
this  crime,  —  none  of  the  other  cases  in  England  have  been  put  upon 
that  ground,  and  their  judicial  value  is  not  impaired  by  his  inaccuracies. 
The  earliest  statute  of  Massachusetts  upon  the  subject  was  passed  in 
1642,  and,  like  the  English  Statutes  of  Westminster,  used  "without 
consent"  as  synonymous  with  "against  her  will,"  as  is  apparent  upon 
reading  its  provisions,  which  were  as  follows:  1st  "  If  any  man  shall 
unlawfully  have  carnal  copulation  with  any  woman  child  under  ten 
years  old,  he  shall  be  put  to  death,  whether  it  were  with  or  without  the 
girl's  consent."     2d  "If  any  man  shall  forcibly  and  without  consent 


460  COMMONWEALTH   V.   BURKE.  [CHAP.  XII. 

ravish  any  maid  or  woman  that  is  lawfull}-  married  or  contracted,  he 
shall  be  put  to  death."  3d  "  If  an}'  man  shall  ravish  any  maid  or 
single  woman,  committing  carnal  copulation  with  her  b}'  force,  against 
her  will,  that  is  above  the  age  of  ten  years,  he  shall  be  either  punished 
with  death,  or  with  some  other  grievous  punishment,  according  to  cir- 
cumstances, at  the  discretion  of  the  judges."  2  Mass.  Col.  Rec.  21. 
Without  dwelling  upon  the  language  of  the  first  of  these  provisions, 
which  related  to  the  abuse  of  female  children,  it  is  manifest  that  in  the 
second  and  third,  both  of  which  related  to  the  crime  of  rape,  strictly  so 
called,  and  differed  onl}'  in  the  degree  of  punishment,  depending  upon 
the  question  whether  the  woman  was  or  was  not  married  or  engaged  to 
be  married,  the  legislature  used  the  words  "  without  consent,"  in  the 
second  provision,  as  precisel}'^  equivalent  to  "against  her  will,"  in  the 
third.  The  later  revisions  of  the  statute  have  abolished  the  difference 
in  punishment,  and  therefore  omitted  the  second  provision,  and  thus 
made  the  definition  of  rape  in  all  cases  the  ravishing  and  carnally 
knowing  a  woman  "  b}-  force  and  against  her  will."  Mass.  Col.  Laws 
(ed.  1660),  9,  (ed.  1672)  15  ;  Mass.  Prov.  Laws,  1692-93  (4  W.  &  M.) 
c.  19,  §  11 ;  1697  (9  W.  IIL)  c.  18 ;  (State  ed.)  56,  296 ;  St.  1805,  c. 
97,  §  1;  Rev.  Sts.  c.  125,  §  18;  Gen.  Sts.  c.  160,  §  26.  But  they 
cannot  upon  any  proper  rule  of  construction  of  a  series  of  statutes  in 
pari  materia,  be  taken  to  have  changed  the  description  of  the  offence. 
Commonwealth  v.  Sugland,  4  Gray,  7 ;  Commonwealth  v.  Bailey,  13 
Allen,  541,  545. 

We  are  therefore  unanimously  of  opinion  that  the  crime,  which  the 
evidence  in  this  case  tended  to  prove,  of  a  man's  having  carnal  inter- 
course with  a  woman,  without  her  consent,  while  she  was,  as  he 
knew,  wholly  insensible  so  as  to  be  incapable  of  consenting,  and  with 
such  force  as  was  necessary'  to  accomplish  the  purpose,  was  rape.  If 
it  were  otherwise,  any  woman  in  a  state  of  utter  stupefaction,  whether 
caused  by  drunkenness,  sudden  disease,  the  blow  of  a  third  person,  or 
drugs  which  she  had  been  persuaded  to  take  even  by  the  defendant 
himself,  would  be  unprotected  from  personal  dishonor.  The  law  is  not 
open  to  such  a  reproach.^  £Jxceptions  overruled. 

1  Ace.  Reg.  V.  Champlin,  1  Den.  C.  C.  89  ;  Reg.  v.  Fletcher,  8  Cox  C.  C.  131  (cf 
Reg.  V.  Fletcher,  10  Cox  C.  C.  248) ;  Reg.  v.  Mayers,  12  Cox  C.  C.  311  ;  Reg.  v.  Bar- 
ratt,  12  Cox  C.  C.  498.  But  see  a  learned  note  on  the  subject,  1  Green  Cr.,  L.  Rep. 
318.  — Ed. 


SECT,  v.]  MURDER.  461 


SECTION  V. 
Murder. 

1  Hawkins,  Pleas   of  the  Crown,  ch.   13,   Sects.  1,  2.      The  word 

"murder''  anciently  signified  only  the  private  killing  of  a  man,  for 
which,  by  force  of  a  law  introduced  by  King  Canute  for  the  i)reser- 
vation  of  his  Danes,  the  town  or  hundred  where  the  fact  was  done  was 
to  be  amerced  to  the  king,  unless  they  could  prove  that  tiie  person  slain 
were  an  Englishman  (which  proof  was  called  P^ngleschire),  or  could 
produce  the  offender,  etc.  And  in  those  days  the  open  wilful  killing 
of  a  man  througli  anger  or  malice,  etc.,  was  not  called  murder,  but 
voluntiiry  homicide. 

But  the  said  law  concerning  Engleschire  having  been  abolished  by 
14  Edw.  III.  c.  4.  the  killing  of  any  Englishman  or  foreigner  through 
malice  prepense,  whether  committed  openly  or  secretly,  was  by  de- 
grees called  murder;  and  13  Rich.  II.  c.  1,  which  restrains  the 
king's  pardon  in  certain  cases,  does  in  the  preamble,  under  the  general 
name  of  murder,  include  all  such  homicide  as  shall  not  be  pardoned 
witliout  special  words ;  and,  in  the  body  of  the  Act,  expresses  the 
same  by  "  murder,  or  killing  by  await,  assault,  or  malice  prepensed." 
And  doubtless  the  makers  of  23  Hen.  VIII.  c.  1,  which  excluded  all 
wilful  murder  of  malice  prepense  from  the  benefit  of  the  clergy,  in- 
tended to  include  open,  as  well  as  private,  homicide  within  the  word 
murder. 

23  Ilen.  VIII.  ch.  1,  Sect.  3.  Be  it  enacted  by  the  King  our  sover- 
eign lord,  and  the  lords  spiritual  and  temporal,  and  the  commons,  in  this 
present  parliament  assembled,  and  by  authority  of  the  same.  That  no 
person  nor  persons,  which  hereafter  shall  happen  to  be  found  guilty 
after  the  laws  of  this  land,  for  any  manner  of  petit  treason,  or  for  any 
wilful  murder  of  malice  prepensed,  or  for  robbing  of  an}'  churches, 
chapels,  or  other  holy  places,  or  for  robbing  of  any  person  or  persons 
in  their  dwelling-houses,  or  dwelling-place,  the  owner  or  dweller  in  the 
same  house,  his  wife,  his  children,  or  servants  then  being  within,  and 
put  in  fear  and  dread  by  the  same,  or  for  robbing  of  any  person  or 
persons  in  or  near  about  the  highways,  or  for  wilful  burning  of  any 
dwelling-houses,  or  barns  wherein  any  grain  or  corn  shall  happen  to 
be,  nor  any  person  or  persons  being  found  guilty  of  any  abetment,  pro- 
curement, helping,  maintaining,  or  counselling,  of  or  to  any  such  petit 
treasons,  murders,  or  felonies,  shall  from  henceforth  be  admitted  to  the 
benefit  of  his  or  their  clergy,  but  utterly  be  excluded  thereof,  and 
suffer  death  in  such  manner  and  form  as  the}'  should  have  done  for 
any  of  the  causes  or  offences  abovesaid  if  they  were  no  clerks ;  such 
as  be  within  holy  orders,  that  is  to  say,  of  the  orders  of  sub-deacon  or 
above,  only  except. 


462  REX  V.   TOMSON.  [CHAP.  XII. 


YONG'S  CASE. 
Queen's  Bench.     1587. 

I  Reported  4  Coke,  40  a.] 

In  this  case  it  was  held  per  totam  curiam  that  if,  upon  an  affray,  the 
constable  and  others  in  his  assistance  come  to  suppress  the  affra}'  and 
preserve  the  peace,  and  in  executing  their  office  the  constable  or  any 
of  his  assistants  is  killed,  it  is  murder  in  law,  although  the  murderer 
knew  not  the  party  that  was  killed,  and  although  the  aflfray  was  sudden  ; 
because  the  constable  and  his  assistants  came  by  authority  of  law  to 
keep  the  peace,  and  prevent  the  danger  which  might  ensue  b}'  the 
breach  of  it ;  and  therefore  the  law  will  adjudge  it  murder,  and  that 
the  murderer  had  malice  prepense,  because  he  set  himself  against  the 
justice  of  the  realm.  So  if  the  sheriff  or  any  of  his  bailiffs  or  other 
officers  is  killed  in  executing  the  process  of  the  law,  or  in  doing  their 
dut}-,  it  is  murder;  the  same  law  of  a  watchman,  who  is  killed  in  the 
execution  of  his  office. 


REX  V.  TOMSON. 

Old  Bailey.     166-. 

[Reported  Kelyng,  66.] 

At  the  sessions  in  the  Old  Bailey  holden  after  Hilary  Term,  Caroli 
Secundi,  Thomas  Tomson  was  indicted  for  murdering  of  Allen  Dawes, 
and  the  jury  found  a  special  verdict  to  this  effect,  viz.,  that  the  day, 
year,  and  place  in  the  indictment  mentioned,  Thomas  Tomson,  the 
prisoner,  and  his  wife  were  fighting  in  the  house  of  the  said  Allen 
Dawes,  who  was  killed,  and  the  said  Allen  Dawes,  seeing  them  fight- 
ing, came  in  and  endeavored  to  part  them,  and  thereupon  the  said 
Tomson  thrust  away  the  said  Dawes,  and  threw  him  down  upon  a  piece 
of  iron,  which  was  a  bar  in  a  chimney  which  kept  up  the  fire,  and  by 
that  one  of  the  ribs  of  the  said  Dawes  was  broken,  of  which  he  died ; 
and  if  the  court  judge  this  murder,  they  find  so,  or  if  manslaughter, 
then  the}-  find  so. 

And  I  put  this  case  to  my  Lord  Chief  Justice,  Baron  Hales  and  my 
brother,  and  some  other  of  my  brethren,  and  we  all  agreed  as  it  is 
resolved  in  Young's  case.  Co.  4.  Report,  and  also  in  Mackall^-'s  case, 
Co.  9.  Report,  that  if  upon  a  sudden  affray,  a  constable  or  watchman, 
or  any  that  come  in  aid  of  them,  who  endeavor  to  part  them,  are  killed, 
this  is  murder  ;  and  we  hold  likewise  that  if  no  constable  or  watchman 
be  there,  if  any  other  person  come  to  part  them,  and  he  be  killed,  this 
is  murder ;  for  every  one  in  such  case  is  bound  to  aid  and  preserve  the 


SECT,  v.]  grey's  case.  463 

king's  peace.  Rut  in  all  those  cases  it  is  necessarj'  that  the  party  who 
waa  lighling  and  killed  liiai  that  eamc  to  part  them,  did  know  or  had 
notice  given  that  tliey  came  fur  that  purpose.  As  for  the  constable  or 
other  person  who  conieth  to  part  them,  to  charge  thein  in  the  king's 
name  to  keep  the  king's  peace,  by  which  they  have  notice  of  their 
intents  ;  fur  otherwise  if  two  are  figliting,  and  a  stranger  runs  in  with 
intent  to  part  tliem,  3*et  the  pari}'  who  is  fighting  ma}'  think  he 
cometii  in  aiil  of  the  otlier  with  whom  he  is  fighting,  unless  some  such 
notice  be  given  as  aforesaid,  that  he  was  a  constable  and  came  to  part 
them  :  and  that  ap[)eareth  by  Mackally's  case  before  cited,  where  in  case 
of  an  arrest  by  a  sergeant,  it  is  necessar}',  to  make  it  murder,  that  the 
sergeant  tell  him  that  he  doth  arrest,  for  else  if  he  doth  say  nothing, 
but  fall  upon  the  man  and  be  killed  by  him,  this  is  but  manslaughter, 
unless  it  appear  that  the  person  arrested  did  know  him  to  be  a  sergeant, 
and  that  he  came  to  arrest  him  ;  for  as  the  case  is  there  put,  if  one 
seeing  tiie  sheriff  or  a  sergeant  whom  he  knoweth  hath  a  warrant  to 
arrest  him,  and  to  prevent  it  before  the  officer  come  so  near  as  to  let 
liim  know  he  doth  arrest  him,  he  shoots  again  at  him,  and  kills  him, 
this  is  murder;  and  in  the  principal  case,  though  the  jury  find  that 
Dawes  came  to  part  the  man  and  wife,  3et  it  doth  not  appear  whether 
it  is  found  that  Tomson  knew  his  intent,  nor  that  Dawes  spake  an}' 
words  whereby  he  might  understand  his  intention,  as  charging  them  to 
keep  the  king's  peace,  etc.,  and  so  we  held  it  to  be  only  manslaughter, 
which  in  law  is  properly  chance-medley,  that  is,  where  one  man  upon  a 
sudden  occasion  kills  another  without  malice  in  fact,  or  malice  implied 
by  law. 


GREY'S  CASE. 
Old  Bailet.     1666. 

[Reported  Kelyng,  64.] 

John  Grey  being  indicted  for  the  murder  of  William  Golding,  the 
jury  found  a  special  verdict  to  this  effect,  viz. :  We  find  that  the  day, 
year,  and  place  in  the  indictment  mentioned  John  Grey,  the  prisoner,  was 
a  l)lacksmith,  and  that  William  Golding,  the  person  killed,  was  his  ser- 
vant, and  that  Grey  his  master  commanded  him  to  mend  certain  stamps, 
being  part  belonging  to  his  trade,  which  he  neglected  to  do ;  and  the 
said  Grey,  his  master,  after  coming  in  asked  him  the  said  Golding, 
why  he  had  not  done  it,  and  then  the  said  Grey  told  the  said  Golding, 
that  if  he  would  not  serve  him,  he  should  serve  in  Bridewell,  to  which 
the  said  Golding  replied,  that  he  had  as  good  serve  in  Bridewell  as 
serve  the  said  Grey  his  master ;  whereupon  the  said  Grey,  without  any 
other  provocation,  struck  the  said  Golding  with  a  bar  of  iron,  which 
the  said  Grey  then  had  in  his  hand,  upon  which  he  and  Golding  were 


464  ^  gkey's  case.  [chap.  xii. 

working  at  the  anvil,  and  with  the  said  blow  he  broke  his  skull,  of 
which  he  died ;  and  if  this  be  murder,  etc.  This  case  was  found 
specialh'  by  the  desire  of  my  Brother  Wylde,  and  I  showed  the  special 
verdict  to  all  my  Brethren,  Judges  of  the  King's  Bench,  and  to  my 
Lord  Bridgman,  Chief  Justice  of  the  Common  Pleas.  And  we  were  all 
of  opinion  that  this  was  murder.  For  if  a  father,  master,  or  school- 
master will  correct  his  child,  servant,  or  scholar,  the3'  must  do  it  with 
such  things  as  are  fit  for  correction,  and  not  with  such  instruments  as 
maj-  probably  kill  them.  For  otherwise,  under  pretence  of  correction, 
a  parent  might  kill  his  child,  or  a  master  his  servant,  or  a  school- 
master his  scholar,  and  a  bar  of  iron  is  no  instrument  for  correction. 
It  is  all  one  as  if  he  had  run  him  through  with  a  sword  ;  and  my 
Brother  Morton  said  he  remembered  a  case  at  Oxford  Assizes  before 
Justice  Jones,  then  Judge  of  Assize,  where  a  smith  being  chiding 
with  his  servant,  upon  some  cross  answer  given  b}^  his  servant,  he 
having  a  piece  of  hot  iron  in  his  hand  run  it  into  his  servant's  bell}', 
and  it  was  judged  murder,  and  the  party  executed.  And  my  Lord 
Bridgman  said,  that  in  his  circuit  there  was  a  woman  indicted  for 
murdering  her  child,  and  it  appeared  upon  the  evidence  that  she  kicked 
her  and  stamped  upon  her  belly,  and  he  judged  it  murder.  And  my 
Brother  Twisden  said  he  ruled  such  a  case  formerly  in  Gloucester  Cir- 
cuit;, for  a  piece  of  iron  or  a  sword  or  a  great  cudgel,  with  which  a 
man  probably  may  be  slain,  are  not  instruments  of  correction.  And 
therefore,  when  a  master  strikes  his  servant  willingly  with  such  things 
as  those  are,  if  death  ensue,  the  law  shall  judge  it  malice  prepense  ;  and 
therefore  the  statute  of  5  H.  IV.  c  5,  which  enacts  that  if  any  one  does 
cut  out  the  tongue,  or  put  out  the  eyes  of  any  of  the  king's  subjects  of 
malice  prepense,  it  shall  be  felon3\  If  a  man  do  cut  out  the  tongue  of 
another  man  voluntarily,  the  law  judgeth  it  of  malice  prepense.  And 
so  where  one  man  killeth  another  without  any  provocation,  the  law 
judgeth  it  malice  prepense  ;  and  in  the  L.  Morle^-'s  case  in  this  book,  it 
was  resolved  by  all  the  judges,  that  words  are  no  provocation  to  lessen 
the  offence  from  being  murder,  if  one  man  kill  another  upon  ill  words 
given  to  him.  But  if  a  parent,  master,  or  schoolmaster,  correct  his 
child,  servant,  or  scholar,  with  such  things  as  are  usual  and  fit  for 
correction,  and  they  happen  to  die,  Poulton  de  Pace,  p.  120,  saith  this 
is  b}^  misadventure,  and  cites  for  authorit}',  Keilwa}',  108,  a,  b,  & 
136,  a.  But  that  book  which  puts  this  case  in  Keilway  is  136,  a,  saith 
that  if  a  master  correct  his  servant,  or  lord  his  villain,  and  by  force  of 
that  correction  he  dieth,  although  he  did  not  intend  to  kill  him,  yet  this 
is  felony,  because  they  ought  to  govern  themselves  in  their  correction 
in  such  ways  that  such  a  misadventure  might  not  happen.  And  I 
suppose,  because  the  word  misadventure  is  there  used,  therefore  Poul- 
ton concludeth  (it  may  be  truly)  that  it  is  but  misadventure. 

And  in  this  principal  case,  upon  certificate  [by]  many  persons  of 
good  commendation  of  the  general  esteem  that  Grey  had,  I  did  certifie 
the  King  that  though  in  strictness  of  law  his  offence  was  murder,  yet  it 


SECT,  v.]  REGINA   V.   SEKNll  465 

was  attended  with  such  circumstances  as  might  render  the  person  an 
object  of  his  Majesty's  grace  and  |)ard()n,  he  having  a  very  good  report 
among  all  iiis  own  conii)any  of  his  own  trade,  and  of  all  liis  neighbors; 
and  upon  this  the  King  was  pleased  to  grant  him  his  pardon. 


REGINA  V.   SERNE. 

Central  Cbiminal  Court.     1887. 

[Reported  16  Cox  C.  C.  311.] 

The  prisoners  Leon  Seme  and  John  Henry  Goldfinch  were  indicted 
for  the  murder  of  a  boy,  Sjaak  Serne,  the  son  of  the  prisoner  Leon 
Sern^,  it  being  alleged  that  they  wilfully  set  on  fire  a  house  and  shop, 
No.  274  Strand,  London,  by  which  act  the  death  of  the  boy  had  been 
caused. 

It  appeared  that  the  prisoner  Serne  with  his  wife,  two  daughters,  and 
two  sons  were  living  at  the  house  in  question ;  and  that  Serne,  at  the 
time  he  was  living  there,  in  midsummer,  1887,  was  in  a  state  of  pecu- 
niary embarrassment,  and  had  put  into  the  premises  furniture  and 
other  goods  of  but  very  little  value,  which  at  the  time  of  the  fire  were 
not  of  greater  value  than  £30.  It  also  appeared  that  previously  to  the 
fire  the  prisoner  Serne  had  insured  the  life  of  the  boy  Sjaak  Serne, 
who  was  imbecile,  and  on  the  first  day  of  September,  1887,  had  in- 
sured his  stock  at  274  Strand,  for  £oOO,  his  furniture  for  £100,  and 
his  rent  for  another  £100 ;  and  that  on  the  17th  of  the  same  month  the 
premises  were  burnt  down. 

Evidence  was  given  on  behalf  of  the  prosecution  that  fires  were  seen 
breaking  out  in  several  parts  of  the  premises  at  the  same  time,  soon 
after  the  prisoners  had  been  seen  in  the  shop  together,  two  fires  being 
in  the  lower  part  of  the  house  and  two  above,  on  the  floor  whence 
escape  could  be  made  on  to  the  roof  of  the  adjoining  house,  and  in 
which  part  were  the  prisoners,  and  the  wife,  and  two  daughters  of 
Seme,  who  escaped ;  that  on  the  premises  were  a  quantity  of  tissue 
transparencies  for  advertising  purposes,  which  were  of  a  most  inflam- 
mable character ;  and  that  on  the  site  of  one  of  the  fires  was  found  a 
great  quantity  of  these  transparencies  close  to  other  inflammable  ma- 
terials ;  that  the  prisoner  Serne,  his  wife  and  daughters,  were  rescued 
from  the  roof  of  the  adjoining  house,  the  other  prisoner  being  rescued 
from  a  window  in  the  front  of  the  house,  but  that  the  boys  were  burnt 
to  death,  the  body  of  the  one  being  found  on  the  floor  Jiear  the  win- 
dow from  which  the  prisoner  Seme,  his  wife,  and  daughters  had 
escaped,  the  body  of  the  other  being  found  at  the  basement  of  the 
premises. 

30 


466  KEGINA   V.    SERNI  [cHAP.  XIL 

Stephen,  J.  Gentlemen,  it  is  now  my  duty  to  direct  your  attention 
to  the  law  and  the  facts  into  which  you  have  to  inquire.  The  two 
prisoners  are  indicted  for  the  wilful  murder  of  the  boy  Sjaak  Serne,  a 
lad  of  about  fourteen  years  of  age ;  and  it  is  necessary  that  I  should 
explain  to  you,  to  a  certain  extent,  the  law  of  England  with  regard  to 
the  crime  of  wilful  murder,  inasmuch  as  you  have  heard  something  said 
about  constructive  murder.  Now  that  phrase,  gentlemen,  has  no  legal 
meaning  whatever.  There  was  wilful  murder  according  to  the  plain 
meaning  of  the  term,  or  there  was  no  murder  at  all  in  the  present  case. 
The  definition  of  murder  is  unlawful  homicide  with  malice  aforethought, 
and  the  words  "  malice  aforethought "  are  technical.  You  must  not, 
therefore,  construe  them  or  suppose  that  they  can  be  construed  by 
ordinary  rules  of  language.  The  words  have  to  be  construed  according 
to  a  long  series  of  decided  cases,  which  have  given  them  meanings  dif- 
ferent from  those  which  might  be  supposed.  One  of  those  meanings  is, 
the  killing  of  another  person  by  an  act  done  with  an  intent  to  commit  a 
felony.  Another  meaning  is,  an  act  done  with  the  knowledge  that  the 
act  will  probably  cause  the  death  of  some  person.  Now  it  is  such  an 
act  as  the  last  which  is  alleged  to  have  been  done  in  this  case ;  and  if 
you  think  that  either  or  both  of  these  men  in  the  dock  killed  this  boy, 
either  by  an  act  done  with  intent  to  commit  a  felony,  that  is  to  say,  the 
setting  of  the  house  on  fire  in  order  to  cheat  the  insurance  company,  or 
by  conduct  which  to  their  knowledge  was  likely  to  cause  death  and 
was  therefore  eminently  dangerous  in  itself,  —  in  either  of  these  cases 
the  prisoners  are  guilty  of  wilful  murder  in  the  plain  meaning  of  the 
word.  I  will  say  a  word  or  two  upon  one  part  of  this  definition,  because 
it  is  capable  of  being  applied  very  harshly  in  certain  cases,  and  also 
because,  though  I  take  the  law  as  I  find  it,  I  very  much  doubt  whether 
the  definition  which  I  have  given,  although  it  is  the  common  definition, 
is  not  somewhat  too  wide.  Now  when  it  is  said  that  murder  means 
killing  a  man  by  an  act  done  in  the  commission  of  a  felony,  the  mere 
words  cover  a  case  like  this,  that  is  to  say,  a  case  where  a  man  gives 
another  a  push  with  an  intention  of  stealing  his  watch,  and  the  person 
so  pushed,  having  a  weak  heart  or  some  other  internal  disorder,  dies. 
To  take  another  very  old  illustration,  it  was  said  that  if  a  man  shot  at 
a  fowl  with  intent  to  steal  it  and  accidentally  killed  a  man,  he  was  to  be 
accounted  guilty  of  murder,  because  the  act  was  done  in  the  commis- 
sion of  a  felony.  I  very  much  doubt,  however,  whether  that  is  really 
the  law,  or  whether  the  Court  for  the  Consideration  of  Crown  Cases 
Reserved  would  hold  it  to  be  so.  The  present  case,  however,  is  not 
such  as  I  have  cited,  nor  anything  like  them.  In  my  opinion  the  defi- 
nition of  the  law  which  makes  it  murder  to  kill  by  an  act  done  in  the 
commission  of  a  felony  might  and  ought  to  be  narrowed,  while  that  part 
of  the  law  under  which  the  Crown  in  this  case  claim  to  have  proved  a 
case  of  murder  is  maintained.  I  think  that,  instead  of  saying  that 
any  act  done  with  intent  to  commit  a  felony  and  which  causes  death 
amouuts  to  murder,  it  would  be  reasonable  to  say  that  any  act  known 


SECT,  v.]  REOINA    V.    SERNli  467 

to  be  dangerous  to  life  and  likely  in  itself  to  cause  death,  done  for  the 
pmpose  of  cotninittiiij^  a  felony,  which  caused  death,  should  be  murder. 
As  an  iUiistratiou  of  tliis,  .suppose  Unit  a  niaii,  intending  to  commit  a 
rape  upon  a  woman,  Iiut  vvilhout  tlie  least  wish  to  kill  her,  sqneezcd 
her  by  the  tliroat  to  overpower  her,  and  in  so  doing  killed  her ;  that 
would  be  murder.  I  thiuk  that  every  one  would  say,  in  a  case  like  that, 
that  when  a  i)crson  began  doing  wicked  acts  for  his  own  base  purposes, 
he  risked  iiis  own  life  as  well  as  that  of  others.  That  kind  of  crime 
does  not  differ  in  any  serious  degree  from  one  committed  by  using  a 
deadly  weapon,  such  as  a  bludgeon,  a  pistol,  or  a  knife.  If  a  man  once 
begins  attacking  the  human  bo<ly  in  such  a  wa}',  he  must  take  the  con- 
sequences if  he  goes  further  than  he  intended  when  he  began.  That 
1  take  to  be  llie  true  meaning  of  tlie  law  on  the  subject.  In  the  present 
case,  genllemen,  you  have  a  man  sleeping  in  a  house  with  his  wife, 
his  two  daughters,  his  two  sons,  and  a  servant,  and  you  are  asked  to 
believe  that  this  man,  with  all  these  people  under  his  protection,  delib- 
erately set  fire  to  the  house  in  three  or  four  different  places  and  thereby 
burnt  two  of  them  to  death.  It  is  alleged  that  he  arranged  matters 
in  sucli  a  way  that  any  person  of  the  most  common  intelligence  must 
have  known  perfectly  well  that  he  was  placing  all  those  people  in 
deadly  risk.  It  appears  to  me  that  if  that  were  really  done,  it  matters 
very  little  indeed  whether  the  prisoners  hoped  the  people  would  escape 
or  whether  they  did  not.  If  a  person  chose,  for  some  wicked  purpose 
of  his  own,  to  sink  a  boat  at  sea,  and  thereby  caused  the  deaths  of  the 
occupants,  it  matters  nothing  whether  at  the  time  of  committing  the 
act  he  hoped  that  the  people  would  be  picked  up  by  a  passing  vessel, 
lie  is  as  much  guilty  of  murder,  if  the  people  are  drowned,  as  if  he  had 
flung  every  person  into  the  water  with  his  own  hand.  Therefore,  gentle- 
men, if  Scrne  and  Goldfinch  set  fire  to  this  house  when  the  famil}-  were 
in  it,  and  if  the  boys  were  by  that  act  stifled  or  burnt  to  death,  then 
the  prisonei-s  are  as  much  guilty  of  murder  as  if  they  had  stabbed  the 
children.  I  will  also  add,  for  my  own  part,  that  I  think,  in  so  saying, 
tlie  law  of  England  lays  down  a  rule  of  broad,  plain  comnjon-sense. 
Treat  a  murderer  how  you  will,  award  him  what  punishment  you 
choose,  it  is  your  duty,  gentlemen,  if  you  think  him  really  guilty  of 
murder,  to  say  so.  That  is  the  law  of  the  land,  and  I  have  no  doubt 
in  my  mind  with  regard  to  it.  There  was  a  case  tried  in  this  court 
which  you  will  no  doubt  remember,  and  which  will  illustrate  my  mean- 
ing. It  was  the  Clerkenwell  explosion  case  in  18G8,  when  a  man 
named  Barrett  was  charged  with  causing  the  death  of  several  persons 
by  an  explosion  which  was  intended  to  release  one  or  two  men  from 
custody- ;  and  I  am  sure  that  no  one  can  say  truly  that  Barrett  was  not 
justly  hanged.  AVith  regard  to  the  facts  in  the  present  case,  the  very 
horror  of  the  crime,  if  crime  it  was,  the  abomination  of  it,  is  a  reason 
for  your  taking  the  most  extreme  care  in  the  case,  and  for  not  imputing 
to  the  prisoners  anything  which  is  not  clearly  proved.  Go<l  forbid  that 
I  should,  by  what  I  say,  produce  on  your  minds,  even  in  the  smallest 


468  STATE   V.    SMITH.  [CHAP.  XII. 

degree,  any  feeling  against  the  prisoners.  You  must  see,  gentlemen, 
that  the  evidence  leaves  no  reasonable  doubt  upon  your  minds ;  but 
you  will  fail  in  the  performance  of  your  duty  if,  being  satisfied  with 
the  evidence,  you  do  not  convict  one  or  both  the  prisoners  of  wilful 
murder,  and  it  is  wilful  murder  of  which  they  are  accused.  [The 
learned  judge  then  proceeded  to  review  the  evidence.  In  the  result 
the  jury  found  a  verdict  of  not  guilty  in  respect  to  each  of  the 
prisoners.]  Verdict^  not  guilty. 


STATE  V.   SMITH. 
Court  of  Appeals  of  South  Carolina.     1847. 

[Reported  2  Strobhart,  77.] 

James  Carter,  on  horseback,  overtook  a  large  and  noisy  crowd  of 
men  and  women  on  foot.  The  prisoner,  one  of  the  crowd,  fired  a 
pistol,  apparently  at  Carter,  but  did  not  hit  him.  The  bullet  struck  and 
killed  a  negro  boy  who  was  sitting  on  a  fence  beside  the  road,  unseen 
by  the  crowd.^ 

The  prisoner  was  found  guilty  of  murder,  and  appealed,  on  the 
grounds  annexed :  — 

1.  That  his  Honor,  the  presiding  Judge,  misdirected  the  jury  in  his 
charge,  by  stating  the  law  to  be  "  that  if  the  prisoner  shot  at  Carter, 
designing  some  serious  injury,  as  the  falling  from  his  horse,  it  is 
murder." 

2.  That  his  Honor  charged  the  jury  that  "  if  the  prisoner  shot  at 
Carter  without  intending  to  kill  or  hurt  him,  it  is  manslaughter." 

3.  That  his  Honor  charged  the  jury  that  "  they  might  find  the 
prisoner  guilty  of  murder  or  manslaughter,  or  not  guilty." 

4.  That  the  verdict  was  contrary  to  law  and  evidence. 
Miller,  for  the  motion. 

Mclver,  Solicitor,  contra. 

Evans,  J.  delivered  the  opinion  of  the  court. 

The  jury  having  found  the  prisoner  guilty  of  murder,  there  is  no 
necessity  to  inquire  whether  he  could  have  been  convicted  of  man- 
slaughter on  this  indictment.  The  first  ground  is,  therefore,  the  onl}' 
one  necessary  to  be  considered.  The  proposition  presented  b}'  that 
ground  is  whether,  supposing  the  prisoner  "  shot  at  Carter,  designing 
to  do  him  some  serious  injury,  as  the  falling  from  his  horse,"  he  is 
guilty  of  the  crime  of  murder.  It  is  not  denied  that  this  question  is 
tlie  same  as  if  he  had  killed  Carter  instead  of  the  negro,  for  if  one 
design  to  kill  A.  but  by  accident  kills  B.  his  crime  is  the  same  as  if 
he  had  executed  his  intended  purpose.     It  will  be  murder,  or  man- 

1  This  statement  is  condensed  from  that  of  the  reporter. 


SECT,  v.]  HAIiLEY   V.    STATE.  469 

slaughter,  or  sclf-dofence,  according  to  the  circumstances.  It  is  very 
clear  that  the  intent  witii  which  an  act  is  clone  very  often  gives  char- 
acter to  the  crime,  but  there  is  a  legal  conclusion  drawn  from  the  facts 
of  the  case,  entirely  independent  of  the  intent  of  the  party.  Thus  it  is 
said  in  2d  Starkie  Ev.  950,  that  "  where  the  defence  is  that  the  death 
was  occasioned  l)\'  accident,  the  nature  of  the  act  which  produced  the 
death,  and  the  real  motive  and  intention  of  the  |)risoner,  are  the  proper 
subjects  of  evidence,  but  the  conclusion  as  to  the  quality  of  the  ortence, 
as  founded  upon  such  facts,  is  a  question  of  law."  The  whole  doctrine 
of  constructive  malice  is  founded  on  the  same  principle.  If  the  act 
which  produced  the  death  be  attended  with  such  circumstances  as  are 
the  ordinary  symptoms  of  a  wicked,  depraved,  and  malignant  spirit,  the 
law  from  these  circumstances  will  imply  malice,  without  reference  to 
what  was  passing  in  the  prisoner's  mind  at  the  time  he  committed  the 
act.  If  one  were  to  fire  a  loaded  gun  into  a  crowd,  or  throw  a  piece  of 
heavy  timber  from  the  top  of  a  house  into  a  street  filled  with  people, 
the  law  would  infer  malice  from  the  wickedness  of  the  act ;  so  also  the 
law  will  inipl}'  that  the  prisoner  intended  the  natural  and  probable  conse- 
quences of  his  own  act ;  as,  in  the  case  of  shooting  a  gun  into  a  crowd, 
the  law  will  imply,  from  the  wantonness  of  the  act,  that  he  intended  to 
kill  some  one,  although  it  might  have  been  done  in  sport.  If  the 
prisoner's  object  had  been  nothing  more  than  to  make  Carter's  horse 
throw  him,  and  he  had  used  such  means  only  as  were  appropriate  to 
that  end,  then  there  would  be  some  reason  for  applying  to  his  case  the 
distinction  that  where  the  intention  was  to  commit  onl}'  a  trespass  or 
a  misdemeanor,  an  accidental  killing  would  be  only  manslaughter.  But 
in  this  case  the  act  done  indicated  an  intention  to  kill ;  it  was  calcu- 
lated to  produce  that  effect,  and  no  other ;  death  was  the  probable 
consequence,  and  did  result  from  it,  and  I  am  of  opinion  there  was  no 
error  in  the  charge  of  the  Circuit  Judge,  that  if  the  prisoner  shot  at 
Carter  the  crime  was  murder,  although  the  prisoner  may  have  designed 
only  to  do  Carter  "  some  serious  injury,  as  the  falling  from  his  horse.'' 
The  motion  is  therefore  dismissed. 

Richardson,  J.,  O'Neall,  J.,  Wardlaw,  J.,  Frost,  J.,  and  Withers, 
J.,  concurred.  Motion  dismissed. 


HADLEY  V.   STATE. 
Supreme  Court  of  Alabama.     1876. 

[Reported  55  Alabama,  31.] 

Stone,  J.^ —  Mr.  Wharton,  the  able  author  of  the  works  on  Criminal 
Law,  and  on  Homicide,  has  contributed  an  article  to  the  "  Forum," 
April  number,  1875,  in  which  he  attempts  to  show  that  there  has  been 

*  Part  of  the  opinion  only  is  given. 


470  HADLEY   V.    STATE.  [CHAP.  XII. 

a  revolution  in  criminal  law,  in  the  naatter  of  presumed  malice.  In 
his  work  on  Homicide,  2d  ed.,  §  671,  he  asserts  the  same  doctrine,  and 
8a3's,  "  If  it  be  said  that  the  use  of  a  weapon,  likel}'  to  inflict  a  mortal 
blow,  implies,  as  a  presumption  of  law,  in  its  technical  sense,  a  deadly- 
design,  tills  is  an  error;  and  a  fortiori  is  it  so  when  it  is  said  the  use 
of  such  a  weapon  implies  a  malicious  design." 

Malice,  design,  and  motive,  are,  as  a  rule,  but  inferential  facts. 
They  are  inferred  from  facts  and  circumstances  positively  proven.  If 
direct,  positive  proof  of  them  were  required,  it  could  rarely  be  given. 
Still,  we  know  they  exist ;  and  when  sufficient  facts  are  in  evidence  to 
justify  us  in  drawing  such  inference,  we  rest  as  securely  in  the  convic- 
tion as  if  it  were  forced  upon  us  by  positive  proof  The  measure  of 
evidence,  however,  to  justify  such  abiding  conviction,  must  be  very 
full,  —  so  full  as  to  exclude  every  other  reasonable  h3'pothesis. 

That  every  one  must  be  held  to  intend  the  known  consequences  of 
his  intentional  act,  is  a  recognized  canon  of  moral  accountability,  and 
of  municipal  law.  Malice,  as  an  ingredient  of  murder,  is  but  a  formed 
design,  by  a  sane  mind,  to  take  life  unlawfully,  without  such  impending 
danger,  to  be  averted  thereby,  as  will  render  it  excusable,  and  with- 
out such  provocation  as  will  repel  the  imputation  of  formed  design. 
Hence,  when  life  is  taken  by  the  direct  use  of  a  deadly  weapon,  the 
canon,  stated  above,  comes  to  its  aid  ;  and,  if  there  be  nothing  else  in 
the  transaction  —  no  qualifying  or  explanatory  circumstance  —  the  con- 
clusion is  irresistible  that  the  killing  was  done  pursuant  to  a  formed 
design,  —  in  other  words,  with  malice  aforethought ;  for  malice,  in  such 
connection,  is  but  the  absence  of  impending  peril  to  life  or  member, 
which  would  excuse  the  homicide,  and  of  sufficient  provocation  to  repel 
the  imputation  of  its  existence. 

In  Foster's  Crown  Law,  it  is  said,  "  In  every  charge  of  murder,  the 
fact  of  killing  being  first  proved,  all  the  circumstances  of  accident, 
necessit}',  or  infirmity,  are  to  be  satisfactorily  proved  by  the  prisoner, 
unless  they  arise  out  of  the  evidence  produced  against  him  ;  for  the  law 
presumeth  the  fact  to  have  been  founded  in  malice,  until  the  contrary 
appeareth  ;  and  very  right  it  is  that  the  law  should  so  presume."  The 
same  doctrine  is  affirmed  in  all  the  older  writers  and  adjudications  on 
criminal  law. 

Sir  Wm.  Blackstone  (4  Com.  201)  sa3's:  "  "We  may  take  it  for  a 
general  rule  that  all  homicide  is  malicious,  and,  of  course,  amounts 
to  murder,  unless  when  justified,  excused,  or  alleviated  into  man- 
slaughter ;  and  all  these  circumstances  of  justification,  excuse,  of 
alleviation,  it  is  incumbent  on  the  prisoner  to  make  out  to  the  satisfac- 
tion of  the  court  and  jury." 

In  the  case  of  Webster  v.  Commonwealth,  5  Cush.  206,  the  case 
stood  on  the  naked  proof  of  the  homicide,  without  an}'  of  the  attendant 
circumstances.     Ch.  J.  Shaw  declared  the  law  as  above  quoted. 

The  case  of  People  v.  Schr3'ver,  42  N.  Y.  1,  is  a  ver}-  careful  and 
full  collection  and  collation  of  authorities,  English  and  American,  and 


SECT.  VI.]  DEGREES  OF  MUKDER.  471 

fully  sustains  the  doctrine  aljove  declared.  See  also  Tweedy  v.  State, 
5  Iowa,  433  ;  Silvus  v.  Stale,  22  Ohio  St.  DO.  The  case  of  Stokes  v. 
The  People,  63  N.  Y.  1G4,  properly  understood,  is  not  materially 
opposed  to  this  view.  The  charge  of  the  judge  in  tliat  case  invaded 
thi'  province  of  the  jury  ;  and,  in  addition  to  this,  the  case  was  made  to 
turn  nmtfrially  on  tiie  statute's  of  New  York.  Tiie  ciiarge  in  that  case 
went  much  beyond  the  principle  above  copied  from  the  old  authors. 

The  charge  in  the  present  case  is  precisely  that  which  was  given  in 
the  case  of  Murphy  v.  The  State,  37  Ala.  142.  In  that  case  this  court 
held  that  the  charge  was  free  from  error.  We  are  unwilling  to  depart 
from  that  decision,  and,  in  doing  so,  from  an  old  landmark  which  has 
for  centuries  withstood  the  test  of  time,  and  the  combined  wisdom  of 
jurists  on  both  sides  of  the  Atlantic.  There  is  a  lamentable  and  grow- 
ing laxity  in  the  administration  of  the  criminal  law,  which  is  seen  and 
deplored  by  all  g(X)d  men.  Life  is  not  sufliciently  cared  for;  its 
destruction  not  punished  with  sufficient  severity.  Until  the  reckless 
and  rash  are  taught,  by  firm  judges  and  stern  juries,  that  the  slayer  of 
his  brother  can  invoke  the  shield  of  self-defence  only  when,  without 
sufficient  provocation  from  him,  his  life  was  in  peril,  or  his  body 
exposed  to  grievous  injury  ;  that  homicide  by  him  cannot  be  mitigated 
to  the  lesser  offence  of  manslaughter,  unless  the  jury  are  convinced 
that  the  killing  was  unpremeditated,  and  the  result  of  sudden  passion, 
excited  by  present  injury  more  grievous  than  words,  we  fear  that  the 
calendar  of  blood}'  crimes  is  destined  to  know  no  diminution  in  its 
numbers.  The  terrors  of  certain  punishment  are  the  only  sure  means 
of  restraining  the  evil-minded. 


SECTION  VI. 

Degrees  of  Murder, 

Public  Statutes  of  Massachusetts,  ch.  202,  Sects.  1,  2,  3.  Murder 
committed  with  deliberately  premeditated  malice  aforethought,  or  in  the 
commission  of,  or  attempt  to  commit  a  crime  punishable  with  death  or 
imprisonment  for  life,  or  committed  with  extreme  atrocity  or  cruelty, 
is  murder  in  the  first  degree.  Murder  not  appearing  to  be  in  the  first 
degree  is  murder  in  the  second  degree.  The  degree  of  murder  shall  be 
found  by  the  jurj*. 

Penal  Code  of  New  York,  Sects.  183,  184,  The  killing  of  a  human 
being,  unless  it  is  excusable  or  justifiable,  is  murder  in  the  first  degree 
when  committed  either  from  a  deliberate  and  premeditated  design  to 
effect  the  death  of  the  person  killed,  or  of  another ;  or  by  an  act 
imminently  dangerous  to  others,  and  evincing  a  depraved  mind,  regard- 


472  LEIGHTON   V.   PEOPLE.  [CUAP.  XIL 

less  of  human  life,  although  without  a  premeditated  design  to  effect  the 
death  of  au}'  individual ;  or  without  a  design  to  effect  death,  by  a 
person  engaged  in  the  commission  of,  or  in  an  attempt  to  commit  a 
felony,  either  upon  or  affecting  the  person  killed  or  otherwise  ;  or  when 
perpetrated  in  committing  the  crime  of  arson  in  the  first  degree.  Such 
killing  of  a  human  being  is  murder  in  the  second  degree  when  com- 
mitted with  a  design  to  effect  the  death  of  the  person  killed,  or  of 
another,  but  without  deliberation  and  premeditation. 


LEIGHTON  V.  PEOPLE. 
Court  of  Appeals  of  New  York.     1882. 

[Reported  88  New  York,  117.] 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  first  judicial 
department,  to  review  judgment  entered  upon  an  order  made  May  20, 
1881,  which  affirmed  a  judgment  of  the  Court  of  Oyer  and  Terminer 
of  the  County  of  New  York,  entered  upon  a  verdict  convicting  the 
plaintiff  in  error  of  the  crime  of  murder  in  the  first  degree. 

The  material  facts  appear  in  the  opinion.^ 

Danforth,  J.  At  its  close  the  prisoner's  counsel  "  excepted  to 
ail  portions  of  the  charge  in  reference  to  the  question  of  the  time 
required  for  premeditation  and  deliberation."  To  bring  the  case  within 
the  statutory  definition  of  murder  in  the  first  degree  it  was  necessary 
that  the  crime  should  be  "  perpetrated  from  the  deliberate  and  pre- 
meditated design  to  effect  the  death  of  the  person  killed."  Laws  of 
1873,  chap.  644,  §  5.  An  act  co-existent  with  and  inseparable  from  a 
sudden  impulse,  although  premeditated,  could  not  be  deemed  deliberate, 
as  when  under  sudden  and  great  provocation  one  instantly,  although 
intentionall}',  kills  another.  But  the  statute  is  not  satisfied  unless  the 
intention  was  deliberated  upon.  If  the  impulse  is  followed  by  reflec- 
tion, that  is  deliberation  ;  hesitation  even  ma}^  iraply  deliberation ;  so 
may  threats  against  another  and  selection  of  means  with  which  to  per- 
petrate the  deed.  If,  therefore,  the  killing  is  not  the  instant  effect  of 
impulse,  if  there  is  hesitation  or  doubt  to  be  overcome,  a  choice  made 
as  the  result  of  thought,  however  short  the  struggle  between  the  inten- 
tion and  the  act,  it  is  sufficient  to  characterize  the  crime  as  deliberate 
and  premeditated  murder. 

The  charge  upon  this  point  was  most  favorable  to  the  prisoner. 
After  stating  the  statute  (supra)  the  judge  said  :  "  There  must  therefore 
be,  in  order  to  establish  the  crime  of  murder  in  the  first  degree,  delibera- 
tion and  premeditation ;  but  there  is  no  time  prescribed  within  which 

1  Only  so  much  of  the  case  as  relates  to  the  degree  of  the  murder  is  given. 


SECT.  VII.]  LORD   MOKLY'S   CASE.  473 

these  opeifttioiKS  of  the  mind  must  occur;  it  is  sufficient  if  their  exercise 
was  uccuniplibhod  when  the  deed  was  done  resulting  in  the  deiith." 
Again  lie  sjiid  :  "It  is  enough  if  there  is  time  for  the  mind  to  think 
upon,  to  consider  tlie  act  of  killing,  to  meditate  upon  it,  to  weigh  it, 
and  then  to  determine  to  do  it."  Immediately  after  this  follovvs  that 
portion  of  the  charge  to  which  the  learned  counsel  for  the  appellant 
directs  our  attention.  "  For  example,"  said  the  judge,  "  if  1,  having 
from  any  reason,  it  matters  not  what,  an  enmity  toward  another,  should 
start  from  this  point  and  walk  to  the  corner  of  Chambers  Street,  weigh 
in  my  mind,  deliberate  upon,  and  premeditate  a  deadl}'  assault  upon 
another,  and  at  that  corner,  meeting  there  the  person  toward  whom  my 
thoughts  were  directed,  I  struck  the  deadly  blow,  that  would  be  sulli- 
cient  deliberation  and  sufficient  premeditation  to  perfect  the  crime  of 
murder  in  the  first  degree.  It  is  enough  that  the  mind  operates  in  these 
two  respects  to  accomplish  it  and  to  present  all  the  elements  that  are 
necessary  to  establish  murder  in  the  first  degree." 

In  this  there  was  no  error.  Then  followed  a  statement  of  the  evi- 
dence bearing  upon  the  proposition  just  laid  down.  It  has  been  recited 
in  the  learned  and  elaborate  opinion  of  the  court  below,  its  correctness 
has  not  been  denied  by  the  appellant's  counsel,  and  it  need  not  be 
repeated.  It  was  in  our  opinion  quite  enough  for  submission  to  the 
jury. 


SECTION  VII. 

Manslaughter. 

LORD   MORLY'S   CASE. 

Resolution  of  the  Judges.     1666. 

[Reported  Kelyng,  53.] 

MEMORAN'Dor,  that  upon  Saturday  the  28th  of  April,  1666,  Ann.  18 
Car.  2,  all  the  judges  of  England,  viz.,  myself,  J.  K.,  Lord  Chief  Jus- 
tice of  the  King's  Bench ;  Sir  Orl.  Bridgman,  Lord  Chief  Justice  of 
the  Common  Pleas  ;  Sir  Matthew  Hales,  Chief  Baron  of  the  Exchequer ; 
my  brother  Atkins,  Brother  Twisden,  Brother  Tyrell,  Brother  Turner, 
Brother  Browne,  Brother  "Windham.  Brother  Archer,  Brother  Rainsford, 
and  Brother  Morton,  met  together  at  Serjeant's  Inn  in  Fleet  Street,  to 
consider  of  such  things  as  might  in  point  of  law  fall  out  in  the  trial  of 
the  Lord  ISIorly,  who  was  on  Monday  to  be  tried  by  his  peers  for  a 
murder  ;  and  we  did  all  una  voce  resolve  several  things  following  :  — 

7.*  Agreed,  that  no  words,  be  they  what  they  will,  are  in  law  such 
a  provocation  as,  if  a  man  kill  another  for  words  onl}',  will  diminish  the 

^  Onlj  the  7th  and  8th  resolutions  are  given. 


474  huggett's  case.  [chap,  xil 

offence  of  killing  a  man  from  murder  to  be  manslaughter ;  as  suppose 
one  call  another  son  of  a  whore,  or  give  him  the  lie,  and  thereupon  he 
to  whom  the  words  are  given,  kill  the  other,  this  is  murder.  But  if 
upon  ill  words,  both  the  parties  suddenly  fight,  and  one  kill  the  other, 
this  is  but  manslaughter,  for  it  is  a  combat  betwixt  two  upon  a  sudden 
heat,  which  is  the  legal  description  of  manslaughter ;  and  we  were  all 
of  opinion  that  the  statute  of  1  Jac.  for  stabbing  a  man  not  having  first 
struck,  nor  having  any  weapon  drawn,  was  onl}'  a  declaration  of  the 
common  law,  and  made  to  prevent  the  inconveniencies  of  juries,  who 
were  apt  to  believe  that  to  be  a  provocation  to  extenuate  a  murder 
which  in  law  was  not. 

8.  Agreed,  that  if  upon  words  two  men  grow  to  anger,  and  afterwards 
they  suppress  that  anger,  and  then  fall  into  other  discourses,  or  have 
other  diversions  for  such  a  space  of  time  as  in  reasonable  intendment 
their  heat  might  be  cooled,  and  some  time  after  they  draw  one  upon 
another,  and  fight,  and  one  is  killed,  this  is  murder,  because  being 
attended  with  such  circumstances  as  it  is  reasonablv  supposed  to  be  a 
deliberate  act,  and  a  premeditated  revenge  upon  the  first  quarrel ;  but 
the  circumstances  of  such  an  act  being  matter  of  fact,  the  jury  are 
judges  of  those  circumstances. 


HUGGETT'S  CASE. 
Crown  Case  Reserved.     1666. 

[Reported  Kelyng,  59.] 

At  a  gaol-delivery  at  Newgate,  25  April,  1666,  18  Car.  2,  upon 
an  indictment  of  murder  against  Hopkin  Huggett,  a  special  verdict  was 
found  to  this  effect :  We  find  that  John  Beriy,  and  two  others  with 
him,  the  day  and  place  in  the  inquisition,  had  de  facto,  but  without  war- 
rant (for  aught  appears  to  us),  impressed  a  man  whose  name  is  not  yet 
known,  to  serve  in  his  Majesty's  service  in  the  wars  against  the  Dutch 
nation  ;  that  thereupon,  after  the  unknown  man  was  impressed,  he  with 
the  said  John  Berry,  went  together  quietly  into  Cloth-fair ;  and  the  said 
Hopkin  Huggett  and  three  others,  walking  together  in  the  rounds  in 
Smithfield,  and  seeing  the  said  Berry  and  two  others  with  the  man  im- 
pressed, going  into  Cloth-fair,  instanth"  pursued  after  them,  and  over- 
taking Berry  and  the  impressed  man  and  the  two  other  men,  required 
to  see  their  warrant,  and  Berry  showed  them  a  paper  which  Hopkin 
Huggett  and  the  three  others  said  was  no  warrant ;  and  immediately 
the  said  H.  Huggett  and  the  three  others  drew  their  swords  to  rescue 
the  said  man  impressed,  and  did  thrust  at  the  said  John  Berr}- ;  and 
thereupon  the  said  John  Berry  and  the  two  others  with  him  did  draw 
their  swords  and  fight  together ;  and  thereupon  the  said  H.  Huggett 
did  give  the  wound  in  the  inquisition  to  the  said  John  Berry,  whereof 


SECT.  VII.]  IIUGGETT'S   CASE.  475 

be  instantl}'  died ;  and  if  upon  the  whole  matter,  the  said  II.  Hug- 
gett  be  guilty  of  murder  they  find  so  ;  if  of  manslaughter  they  find  so, 
&c.  All  the  judges  of  England  being  met  togetlier,  at  Serjeant's  Inn, 
in  Fleet  Street,  upon  other  occasions  (and  befure  that  time  having 
copies  of  this  special  verdict  sent  unto  them),  after  the  other  business 
dispatched  they  were  desired  to  give  their  opinions  in  this  case, 
whether  they  held  it  to  be  murder  or  manslaughter.  And  the  Lord 
Chief  Justice  Bridgman,  Lord  Chief  Baron  Hales,  my  brother  Atkins, 
Brother  Tyrell.  Brother  Turner,  Brother  Browne,  Brother  Archer,  and 
Brother  Rainsford,  having  had  the  notes  of  the  special  verdict  three  days 
before,  delivered  their  opinion  as  then  advised,  but  they  said  they 
would  not  be  bound  by  it:  that  this  was  no  murder,  but  onl}'  man- 
slaugliler  ;  and  they  said  that  if  a  man  be  unduly  arrested  or  restrained 
of  his  liberty  by  tlnee  men.  allhough  he  be  quiet  himself,  and  do  not  en- 
deavor any  rescue,  yet  this  is  a  provocation  to  all  other  men  of  Eng- 
land, not  only  his  friends  but  strangers  also,  for  common  humanitv  sake, 
as  my  Lord  Bridgman  said,  to  endeavor  his  rescue ;  and  if  in  such 
endeavor  of  rescue  they  kill  any  one,  this  is  no  murder,  but  only  man- 
slaughter ;  and  my  brother  Browne  seemed  to  rely  on  a  case  in  Coke 
12  Rep.  p.  87,  where  divers  men  were  playing  at  bowls,  and  two  of 
them  fell  out  and  quarrelled,  one  with  another,  and  a  third  man  who 
had  no  quarrel,  iu  revenge  of  his  friend  struck  the  other  with  a  bowl, 
of  which  blow  he  died  ;  this  was  held  to  be  only  manslaughter.  But 
myself.  Brother  Tvvisden,  Brotlier  Windham,  and  Brother  Morton, 
were  of  another  opinion  ;  and  we  held  it  to  be  a  murder,  because  there 
was  (as  we  thought)  no  provocation  at  all.  And  if  one  man  assault 
another  without  provocation,  and  kill  him,  this  is  murder ;  the  law  in 
that  case  implying  malice.  And  we  find  it  was  resolved  by  all  the 
judges  in  the  Lord  Morly's  case  that  no  words,  be  they  what  they 
will,  were  such  a  provocation  in  law  as,  if  upon  them  one  kills  another, 
would  diminish  or  lessen  the  offence  from  being  murder  to  be  but  man- 
slaugliter.  As  if  one  calleth  another  son  of  a  whore,  and  giveth  him 
the  lie,  and  upon  those  words  the  other  kill  him  that  gave  tlie  words  ; 
this,  notwithstanding  those  words,  is  murder;  and  we  thought  those 
words  were  apter  to  provoke  a  man  to  kill  another  than  the  bare  see- 
ing a  man  to  be  undul}'  pressed  when  the  party  pressed  willingly  renders 
himself.  But  we  held  that  such  a  provocation  as  must  take  otT  the  kill- 
ing of  a  man  from  murder  to  be  but  manslaughter,  must  be  some  open 
violence,  or  actual  striving  with,  or  striking  one  another  ;  and  that 
answers  the  case  cited  by  my  brother  Browne.  For  there  it  must  be 
intended  that  the  two  men  that  fell  out  were  actually  fighting  together; 
for  if  there  passed  only  words  betwixt  these  two,  and  upon  them,  a 
third  person  struck  one  of  them  with  a  bowl,  and  killed  him,  we  held 
that  to  be  murder.  And  to  this  my  Lord  Bridgman  and  the  other 
judges  agreed,  and  we  thought  the  case  in  question  to  be  much  the 
stronger,  because  the  party  himself  who  was  impressed  was  quiet,  and 
made  no  resistance,  and  the}-  who  meddled  were  no  friends  of  his,  or 


476  hitggett's  case.  [chap.  xii. 

acquaintance,  but  were  strangers,  and  did  not  so  much  as  desire  them 
-which  had  him  in  custody  to  let  him  go,  but  presently  without  more 
ado,  drew  their  swords  at  them,  and  ran  at  them.  And  we  thought  it 
to  be  of  dangerous  consequence  to  give  any  encouragement  to  private 
men  to  take  upon  themselves  to  be  the  assertors  of  other  men's  libei'ties, 
and  to  become  patrons  to  rescue  them  from  wrong ;  especiall}-  in  a  na- 
tion where  good  laws  are  for  the  punishment  of  all  such  injuries,  and  one 
great  end  of  law  is  to  right  men  by  peaceable  means,  and  to  dis- 
countenance all  endeavors  to  right  themselves,  much  less  other  men  by 
force. 

Secondly,  we  four  were  of  opinion  that  if  A.  assault  B.  without  any 
provocation,  and  draw  his  sword  at  him,  and  run  at  him ;  and  then  B. 
to  defend  himself  draw  his  sword,  and  they  fight  together.  If  A.  kill 
B.  it  is  murder,  and  B.  drawing  his  sword  to  defend  himself  shall 
not  lessen  the  offence  of  A.  from  being  murder  to  be  manslaughter 
only ;  and  to  this  the  other  judges  did  (as  I  take  it)  agree,  for  it  were 
unreasonable  that  if  one  man  draw  upon  another,  and  run  at  him  with- 
out any  provocation  that  the  other  man  should  stand  still,  and  not 
defend  himself,  and  it  is  also  unreasonable  that  his  endeavor  to  defend 
himself  should  lessen  the  offence  of  him  who  set  upon  him  without  prov- 
ocation. 

But  we  four  held  that  if  two  men  be  quarrelling,  and  actually  fight- 
ing together,  and  another  man  runneth  in  to  aid  one  of  them  and  kill  the 
other,  this  is  but  manslaughter,  because  there  was  an  actual  fighting 
and  striving  with  violence. 

So  we  held,  if  such  people  who  are  called  spirits  take  up  a  youth,  or 
other  person  to  carry  him  away,  and  thereupon  there  is  a  tumult  raised, 
and  several  persons  run  in,  and  there  is  a  man  killed  in  the  fray,  this 
is  but  manslaughter ;  for  there  is  an  open  affray,  and  actual  force,  which 
is  a  sudden  provocation,  and  so  that  death  which  ensueth  is  but  man- 
slaughter. But  where  people  are  at  peace,  there,  if  another  man  upon 
suspicion  that  an  injury  is  done  to  one  of  them,  will  assault  and  kill 
him  whom  he  thinketh  did  the  injury,  this  is  murder,  so  that  we  hold 
nothing  but  an  open  affray  or  striving  can  be  a  provocation  to  any  per- 
son to  meddle  with  an  injury  done  to  another,  if  in  that  meddling  he 
kill  a  man,  to  diminish  or  lessen  the  offence  from  murder  to  man- 
slaughter. 

Memorandum  :  After  this  difference  I  granted  a  certiorari  to  remove 
the  cause  into  the  King's  Bench,  to  be  argued  there,  and  to  receive  a 
final  and  legal  determination  ;  and  although  all  the  judges  of  the  court 
were  clearh'  of  opinion  that  it  was  murder,  j'et  it  being  in  case  of  life, 
we  did  not  think  it  prudent  to  give  him  judgment  of  death,  but  admitted 
him  to  his  clergy ;  and  after  he  read,  and  was  burnt  in  the  hand, 
we  ordered  him  to  lie  in  prison  eleven  months  without  bail,  and  after- 
wards until  he  found  sureties  to  be  of  the  good  behavior  during  his  life.^ 

1  See  on  this  point  the  correspondence  between  Seymour,  Q.  C,  and  others  and 
Blackburn^  J.,  printed  in  note  IX.  to  Stephen's  Digest  of  Cr  Law.  — Ed, 


SECT.  VIL]  EEX   V.   THOMPSON.  477 


REGINA   V.   STEDMAN. 
Old  Bailey.     17u4. 

[Rtported  Foster  Cr.  L.  292.) 

There  being  an  affray  in  the  street,  one  Stedman,  a  footsoldier,  ran 
hastily  towards  the  combatants.  A  woman  seeing  hira  run  in  that 
manner  cried  out,  '■"  You  will  not  murder  the  man,  will  you?  "  Stedman 
replied,  ♦*  What  is  that  to  you,  you  bitch?"  The  woman  thereupon 
gave  him  a  box  on  the  ear,  and  Stedman  struck  her  on  the  breast  with 
the  pommel  of  his  sword.  The  woman  then  fled,  and  Stedman  pursu- 
ing her  stabbed  her  in  the  back.  H^t  was  at  first  of  opinion,  that  this 
was  murder,  a  single  box  on  the  ear  from  a  woman  not  being  a  suffi- 
cient provocation  to  kill  in  this  manner,  after  he  had  given  her  a  blow 
in  return  for  the  box  on  the  ear ;  and  it  was  proposed  to  have  the 
matter  found  specially :  but  it  afterwards  appearing  in  the  progress  of 
the  trial,  that  the  woman  struck  the  soldier  in  the  face  with  an  iron 
patten,  and  drew  a  great  deal  of  blood,  it  was  holden  clearly  to  be  no 
more  than  manslaughter. 

The  smart  of  the  man's  wound,  and  the  effusion  of  blood  might  pos- 
sibly keep  his  indignation  boihng  to  the  moment  of  the  fact. 


FRAY'S   CASE. 
Old  Bailey,  coram  Gould,  J.     1785. 

[Reported  1  East  P.  C.  236.] 

Where  one,  having  had  his  pocket  picked,  seized  the  offender,  and 
being  encouraged  b}-  a  concourse  of  people,  threw  him  into  an  adjoin- 
ing pond  b}-  way  of  avenging  the  theft  by  ducking  him,  but  without 
any  apparent  intention  of  taking  away  his  life,  and  the  pickpocket  was 
drowned,  this  was  ruled  to  be  manslaughter  only. 


REX  V.   THOMPSON, 
Crown  Case  Reserved.     1825. 

[Reported  1  ^foodl/  C.  C.  80.] 

The  prisoner  was  tried  before  Mr.  Baron  Garrow  at  the  Winter 
Assizes  at  Maidstone,  in  the  3'ear  1825,  upon  an  indictment  which 
charged   him,    first,   with    maliciously   stabbing   and   cutting   Richard 


478  REX  V.    THOMPSON.  [CHAP.  XIL 

Southerden,  with  intent  to  murder ;  secondly,  with  intent  to  disable 
Iiiui ;  and  thirdly,  with  intent  to  do  him  some  grievous  bodily  harm. 

On  the  trial  it  appeared  that  the  prisoner,  who  was  a  journeyman 
shoemaker,  on  the  ISth  of  November,  1824,  applied  to  his  master  for 
some  monej',  who  refused  to  give  it  to  him  till  he  finished  his  work  ;  on 
his  subsequently  urging  for  money  and  his  master  refusing  him,  he 
became  abusive,  upon  which  his  master  threatened  to  send  for  a  con- 
stable. The  prisoner  refused  to  finish  his  work,  and  said  he  would  go 
upstairs  and  pack  up  his  tools,  and  said  no  constable  should  stop  him  ; 
he  came  downstairs  with  his  tools,  and  drew  from  the  sleeve  of  his  coat 
a  naked  knife,  and  said  he  would  do  for  the  first  bloody  constable  that 
offered  to  stop  him  ;  that  he  was  ready  to  die,  and  would  have  a  life 
before  he  lost  his  own ;  and  then  making  a  twisting  or  flourishing 
motion  with  the  knife,  put  it  up  his  sleeve  again,  and  left  the  shop. 

The  master  then  applied  to  Southerden,  the  constable,  to  take  the 
prisoner  into  custody  ;  he  made  no  charge,  but  said  ''  he  suspected  he 
had  tools  of  his,  and  was  leaving  his  work  undone  ;  "  the  constable  said 
he  would  take  him  if  the  master  would  give  him  charge  of  him ;  they 
then  followed  the  prisoner  to  the  3-ard  of  the  Bull's  Head  Inn  ;  the  pris- 
oner was  in  a  public  privy  there  as  if  he  had  occasion  there.  The  privy 
had  no  door  to  it.  The  master  said,  "That  is  the  man;  I  give  you 
in  charge  of  him."  The  constable  then  said  to  the  prisoner,  "  My  good 
fellow,  your  master  gives  me  charge  of  you ;  you  must  go  with  me." 
The  prisoner,  without  saying  anything,  presented  a  knife  to  the  con- 
stable and  stabbed  him  under  the  left  breast ;  he  attempted  to  make  a 
second,  third,  and  fourth  blow,  which  the  constable  parried  off  with  his 
staff.  The  constable  then  aimed  a  blow  at  his  head  ;  the  prisoner  then 
ran  away  with  the  knife  and  was  afterwards  secured. 

The  surgeon  described  the  wound  as  being  two  inches  and  a  half  in 
length  and  one  quarter  of  an  inch  deep,  and  inflicted  with  a  sharp 
Instrument  like  the  knife  produced.  The  knife  appeared  to  have  struck 
against  one  of  the  ribs  and  glanced  off.  Had  the  point  of  the  knife 
insinuated  itself  between  the  ribs  and  entered  the  cavity  of  the  chest, 
death  would  have  inevitably  been  the  consequence  ;  if  it  had  struck  two 
inches  lower  death  would  have  ensued  ;  but  the  wound,  as  it  happened, 
was  not  considered  dangerous. 

The  jury  found  the  prisoner  guilty,  and  sentence  of  death  was  passed 
upon  him  ;  but  the  learned  judge  respited  the  execution  and  submitted 
the  case  for  the  consideration  of  the  judges. 

In  Hilary  term,  1825,  all  the  judges  (except  Best,  L.  C.  J,,  and 
Alexander,  L.  C.  B.,  who  were  absent)  met  and  considered  this  case. 
The  majority  of  the  judges,  viz.,  Abbott,  L.  C.  J.,  Graham,  B.,  Bayle}-, 
J.,  Park,  J.,  Garrow,  B.,  HuUock,  B.,  Littledale,  J.,  and  Gaselee,  J., 
held  that  as  the  actual  arrest  would  have  been  illegal,  the  attempt  to 
make  it  when  the  prisoner  was  in  such  a  situation  that  he  could  not 
get  away,  and  when  the  waiting  to  give  notice  might  have  enabled  the 
constable  to  complete  the  arrest,  was  such  a  provocation  as,  if  death 


SECT.  VII.]  REGINA   V.   WELSH.  479 

had  ensued,  would  have  made  the  case  luanslaugbter  only,  and  that 
tlierefore  tlie  cuiivicliou  was  wrong.  Holloed,  J.,  aud  BuirougU,  J., 
tliou^Ut  ullierwise. 


REGINA   r.    WELSH. 
Central  Cuiminal  Couut.     1869. 

[Reported  11  Cox  C.  C.  336.] 

The  prisoner  was  indicted  for  that  he  feloniously  and  with  malice 
aforethought  did  kill  and  slay  one  Abraham. 

Pater  for  the  prosecution. 

Ribton  for  the  prisoner. 

Tlie  prisoner  had  claimed  a  debt  from  the  deceased,  and  had  sum- 
moned him  to  a  police  court  where  the  claim  was  dismissed.  The 
prisoner  went  from  the  police  office  to  a  public-house,  distant  about  a 
mile,  whither  in  a  shoit  time  the  deceased  also  came.  "  You  have  got 
the  better  of  me  this  time,"  said  tlie  prisoner  to  him.  "  Yes,"  answered 
the  deceased,  pleasantly;  "I  thought  I  should."  "But,"  said  the 
prisoner,  "  I  '11  have  another  summons  out  against  you  about  it."  "  I 
am  ready,"  replied  the  deceased,  "  to  pay  what  any  indifferent  person 
may  say  is  due."  "  Not  3'ou,"  said  the  prisoner  ;  "  you  don't  mean  to 
pa}-  anything."  The  deceased  approached  him  and  offered  to  drink 
with  him.  The  prisoner  refused,  saying,  "  I  will  not  drink  with  such  a 
man  as  you."  The  deceased  came  near  him.  The  prisoner  said, 
"  Don't  come  near  me,"  and  advanced  towards  him.  The  deceased 
retreated  several  paces.  The  prisoner  came  near  him.  The  deceased 
held  out  his  hand  again,  until  it  was  within  a  few  Inches  of  the  pris- 
oner's face,  apparently  to  ward  him  off,  and  saying  at  the  same  time, 
"  Words  as  you  like,  but  keep  your  hands  off."  The  deceased  struck 
no  blow.  The  prisoner  closed  with  him,  and  forced  him  down  on  a 
seat,  and  a  few  moments  afterwards  was  seen  almost  upon  him,  in  the 
act  of  stabbing  him  in  the  abdomen  with  a  clasp  knife.  The  blow  was 
mortal,  and  the  man  died. 

Jiibt(m,  for  the  prisoner,  strove  in  cross-examination  to  elicit  that 
there  was  some  blow  or  push  by  the  deceased. 

The  principal  witnesses,  in  answer  to  the  learned  judge,  said  that 
they  saw  no  blow  or  even  push  by  the  deceased  ;  but  that,  on  the  con- 
trary, it  was  the  prisoner  wl»o  shoved  or  pushed  the  deceased  down. 

Ribton^  in  addressing  the  jury  for  the  defence,  submitted  that  the 
question  was  not  whether  the  provocation  was  or  was  not  slight  (as  he 
admitted  it  was),  but  whether  or  not  in  point  of  fact  the  prisoner 
was  under  the  influence  of  ungovernable  passion  at  the  time  he  struck 
the  blow. 

Keating,  J.,  however,  said  he  should  tell  the  jury  that  the  question 


480  REGINA  V.   WELSH.  [CHAP.  XII. 

was,   not  merely  whether  there  was  passion,  but  whether  there  was 
reasonable  provocation. 

Eibtoii  cited  Foster's  Crown  Law,  295,  to  show  that  the  law  made 
allowances  for  human  passion,  and  he  urged  that  upon  the  evidence 
there  was  clearly  an  assault  upon  the  person  by  the  deceased  in  holding 
his  hand  so  near  the  prisoner's  face,  and  that  the  probability  was  that 
there  was  a  blow,  as  the  witnesses  heard  the  prisoner  say  "  Keep  off," 
and  did  not  see  precisely  what  had  happened  in  the  brief  interval 
between  that  expression  and  the  fatal  blow. 

Keating,  J.,  in  summing  up  the  case  to  the  jury,  said :  The  pris- 
oner is  indicted  for  that  he  killed  the  deceased  feloniously  and  with 
malice  aforethought,  that  is  to  say  intentionally,  without  such  provo- 
cation as  would  have  excused,  or  such  cause  as  might  have  justified, 
the  act.  Malice  aforethought  means  intention  to  kill.  Whenever  one 
person  kills  another  intentionally,  he  does  it  with  malice  aforethought. 
In  point  of  law,  the  intention  signifies  the  malice.  It  is  for  him  to 
show  that  it  was  not  so  by  showing  sufficient  provocation,  which  only 
reduces  the  crime  to  manslaughter,  because  it  tends  to  negative  the 
malice.  But  when  that  provocation  does  not  appear,  the  malice  afore- 
thought implied  in  the  intention  remains.  By  the  law  of  England, 
therefore,  all  intentional  homicide  \^  prima  facie  murder.  It  rests  with 
the  party  charged  with  and  proved  to  have  committed  it  to  show,  either 
by  evidence  adduced  for  the  purpose,  or  upon  the  facts  as  they  appear, 
that  the  homicide  took  place  under  such  circumstances  as  to  reduce  the 
crime  from  murder  to  manslaughter.  Homicide,  which  would  be  prima 
facie  murder,  may  be  committed  under  such  circumstances  of  provoca- 
tion as  to  make  it  manslaughter,  and  show  that  it  was  not  committed 
with  malice  aforethought.  The  question,  therefore,  is  —  first,  whether 
there  is  evidence  of  any  such  provocation  as  could  reduce  the  crime 
from  murder  to  manslaughter ;  and,  if  there  be  any  such  evidence,  then 
it  is  for  the  jury  whether  it  was  such  that  they  can  attribute  the  act  to 
the  violence  of  passion  naturally  arising  therefrom,  and  likely  to  be 
aroused  thereby  in  the  breast  of  a  reasonable  man.  The  law,  therefore, 
is  not,  as  was  represented  by  the  prisoner's  counsel,  that,  if  a  man 
commits  the  crime  under  the  influence  of  passion,  it  is  mere  man- 
slaughter. The  law  is  that  there  must  exist  such  an  amount  of  provo- 
cation as  would  be  excited  by  the  circumstances  in  the  mind  of  a 
reasonable  man,  and  so  as  to  lead  the  jury  to  ascribe  the  act  to  the 
influence  of  that  passion.  When  the  law  says  that  it  allows  for  the 
infirmity  of  human  nature,  it  does  not  say  that  if  a  man,  without  suffi- 
cient provocation,  gives  way  to  angry  passion,  and  does  not  use  his 
reason  to  control  it  —  the  law  does  not  sa}'  that  an  act  of  homicide, 
intentionally  committed  under  the  influence  of  that  passion,  is  excused 
or  reduced  to  manslaughter.  The  law  contemplates  the  case  of  a 
reasonable  man,  and  requires  that  the  provocation  shall  be  such  as 
that  such  a  man  might  naturally  be  induced,  in  the  anger  of  the 
moment,  to  commit  the  act.    Now,  I  am  bound  to  say  that  I  am  unable 


SECT.  VII.]  REGINA  V.   ROTIIWELL.  481 

to  discover  in  the  evidence  in  this  case  any  provocation  which  would 
suffice,  or  approach  to  such  as  would  suffice,  to  reduce  the  crime  to 
manslaughter.  It  has  been  laid  down  that  mere  words  or  gestures  will 
not  be  sufficient  to  reduce  the  ofFence,  and  at  all  events  the  law  is  clear 
that  the  provocation  must  be  serious.  1  have  already  said  that  I  can 
discover  no  proof  of  such  provocation  in  the  evidence.  If  you  can 
discover  it,  you  can  give  effect  to  it ;  but  you  are  bound  not  to  do  so 
unless  satisfied  that  it  was  serious.  It  is  urged  that  there  was  an 
assault,  and  that  it  is  probable  there  was  a  blow.  That  is  for  you  to 
consider.  What  I  am  bound  to  tell  you  is  that  in  law  it  is  necessary 
that  there  should  have  been  serious  provocation  in  order  to  reduce  the 
crime  to  manslaughter,  as,  for  instance,  a  blow,  and  a  severe  blow,  — 
something  which  might  naturally  cause  an  ordinary  and  reasonably 
minded  man  to  lose  his  self-control  and  commit  such  an  act.  I 
endeavored  to  elicit  whether  there  was  anything  like  a  blow  by  the 
deceased,  but  failed  to  do  so.  It  does  not  appear  that  there  was  any- 
thing beyond  putting  out  his  hand,  which  came  near  the  prisoner's  face. 
There  is  no  evidence  of  his  doing  an^-thing  else  ;  that  is  the  evidence. 
Upon  the  evidence  it  is  for  you  to  ascertain  whether,  taking  the  law  as 
I  have  laid  it  down,  you  can  discover  evidence  of  such  a  serious  provo- 
cation as  would  reduce  the  crime  to  manslaughter. 

Guilty  /  sentence^  Death. 


REGINA  V.  ROTHWELL. 

Manchester  Assizes.     1871. 
[Reported  12  Cox  C.  C.  145.] 

Christopher  Rothwell  was  indicted  for  the  wilful  murder  of  his 
wife,  at  Oldham,  on  the  2d  of  October. 

Cottingham  for  the  prosecution. 

Torr  for  the  defence.^ 

Blackburn,  J.,  in  summing  up,  said :  A  person  who  inflicted  a 
dangerous  wound,  that  is  to  say,  a  wound  of  such  a  nature  as  he  must 
know  to  be  dangerous,  and  death  ensues,  is  guilty  of  murder ;  but 
there  may  be  such  heat  of  blood  and  provocation  as  to  reduce  the 
crime  to  manslaughter.  A  blow  is  such  a  provocation  as  will  reduce 
the  crime  of  murder  to  that  of  manslaughter.  Where,  however,  there 
are  no  blows,  there  must  be  a  provocation  equal  to  blows ;  it  must  be 
at  least  as  great  as  blows.  For  instance,  a  man  who  discovers  his  wife 
in  adultery,  and  thereupon  kills  the  adulterer,  is  onl}'  guilty  of  man- 
slaughter. As  a  general  rule  of  law,  no  provocation  of  words  will 
reduce  the  crime  of  murder  to  that  of  manslaughter,  but  under  special 

^  The  evidence  is  omitted. 
81 


432  MAHER   V.    PEOPLE.  [CHAP.  XII. 

circumstances  there  may  be  such  a  provocation  of  words  as  will  have 
that  effect ;  for  instance,  if  a  husband  suddenl}'  hearing  from  his  wife 
that  she  had  committed  adultery,  and  he  having  had  no  idea  of  such  a 
thing  before,  were  thereupon  to  kill  his  wife,  it  might  be  manslaughter. 
Now,  in  this  case,  words  spoken  b}'  the  deceased  just  previous  to  the 
blows  inflicted  by  the  prisoner  were  these:  "Aye;  but  I'll  take  no 
more  for  thee,  for  I  will  have  no  more  children  of  thee.  I  have 
done  it  once,  and  I  '11  do  it  again."  Now,  what  you  will  have  to  con- 
sider is,  would  these  words,  which  were  spoken  just  previous  to  the 
blows,  amount  to  such  a  provocation  as  would  in  an  ordinarj-  man,  not 
in  a  man  of  violent  or  passionate  disposition,  provoke  him  in  such  a 
way  as  to  justify  him  in  striking  her  as  the  prisoner  did. 

Guilty  of  manslaughter ;  ten  years  penal  servitude. 


MAHER  y.  PEOPLE. 
Supreme  Court  of  Michigan.    1862. 

[Reported  10  Michigan,  212.] 

Christiancy,  J.^  To  give  the  homicide  the  legal  character  of  murder, 
all  the  authorities  agree  that  it  must  have  been  perpetrated  with  malice 
prepense  or  aforethought.  This  malice  is  just  as  essential  an  ingredient 
of  the  offence  as  the  act  which  causes  the  death  ;  without  the  concurrence 
of  both,  the  crime  cannot  exist ;  and,  as  ever}'  man  is  presumed  innocent 
of  the  offence  with  which  he  is  charged  till  he  is  proved  to  be  guilty, 
this  presumption  must  apply  equally  to  both  ingredients  of  the  offence, 
—  to  the  malice  as  well  as  to  the  killing.  Hence,  though  the  principle 
seems  to  have  been  sometimes  overlooked,  the  burden  of  proof,  as  to 
each,  rests  equally  upon  the  prosecution,  though  the  one  may  admit 
and  require  more  direct  proof  than  the  other ;  malice,  in  most  cases, 
not  being  susceptible  of  direct  proof,  but  to  be  established  by  infer- 
ences more  or  less  strong,  to  be  drawn  from  the  facts  and  circumstances 
connected  with  the  killing,  and  which  indicate  the  disposition  or  state 
of  mind  with  which  it  was  done.  It  is  for  the  court  to  define  the  legal 
import  of  the  term  "malice  aforethought,"  or,  in  other  words,  that  state 
or  disposition  of  mind  which  constitutes  it ;  but  the  question  whether 
it  existed  or  not,  in  the  particular  instance,  would,  upon  principle,  seem 
to  be  as  clearly  a  question  of  fact  for  the  jury  as  any  other  fact  in  the 
cause,  and  that  they  must  give  such  weight  to  the  various  facts  and 
circumstances  accompanying  the  act,  or  in  any  way  bearing  upon  the 
question,  as  in  their  judgment  they  deserve :  and  that  the  court  have 
no  right  to  withdraw  the  question  from  the  jury  by  assuming  to  draw 

^  Part  of  the  opinion  only  is  given. 


SECT.  VII.]  MAHER   V.    PEOPLE.  483 

the  proper  inferences  from  the  whole  or  any  part  of  the  facts  proved, 
as  presumption  of  hiw.  If  courts  could  do  this,  juries  might  ho  required 
to  find  the  fact  of  malice  where  they  were  satisfied  from  the  whole 
evidence  it  did  not  exist.  I  do  not  here  speak  of  those  cases  in  which 
the  death  is  caused  in  the  attempt  to  commit  some  other  offence,  or  in 
illegal  resistance  to  public  officers,  or  other  classes  of  cases  which  mav 
rest  upon  peculiar  grounds  of  public  policy,  and  which  may  or  may 
not  form  an  exception  ;  but  of  ordinary  cases,  such  as  this  would  have 
been  had  death  ensued.  It  is  not  necessary  here  to  enumerate  all  the 
elements  which  enter  into  the  legal  definition  of  malice  aforethought. 
It  is  sulficiont  to  say  that,  within  the  principle  of  all  the  recognized 
definitions,  the  homicide  must,  in  all  ordinary  cases,  have  been  com- 
mitted with  some  degree  of  coolness  and  deliberation,  or,  at  least 
under  circumstances  in  which  ordinary  men,  or  the  average  of  men 
recognized  as  peaceable  citizens,  would  not  be  liable  to  have  their 
reason  clouded  or  obscured  by  passion  ;  and  the  act  must  be  prompted 
by,  or  the  circumstances  indicate  that  it  sprung  from,  a  wicked, 
depraved,  or  malignant  mind,  —  a  mind  which  even  in  its  habitual  con- 
dition and  when  excited  by  no  provocation  which  would  be  liable  to 
give  undue  control  to  passion  in  ordinary  men,  is  cruel,  wanton,  or 
malignant,  reckless  of  human  life,  or  regardless  of  social  duty. 

But  if  the  act  of  killing,  though  intentional,  be  committed  under  the 
influence  of  passion  or  in  heat  of  blood,  produced  by  an  adequate  or 
reasonable  provocation,  and  before  a  reasonable  time  has  elapsed  for 
the  blood  to  cool  and  reason  to  resume  its  habitual  control,  and  is  the 
result  of  the  temporary  excitement  by  which  the  control  of  reason  was 
disturbed,  rather  than  of  any  wickedness  of  heart  or  cruelty  or  reck- 
lessness of  disposition,  —  then  the  law,  out  of  indulgence  to  the  frailty 
of  human  nature,  or  rather,  in  recognition  of  the  laws  upon  which 
human  nature  is  constituted,  very  properly  regards  the  offence  as  of  a 
less  heinous  character  than  murder,  and  gives  it  the  designation  of 
manslaughter. 

To  what  extent  the  passions  must  be  aroused  and  the  dominion  of 
reason  disturbed  to  reduce  the  offence  from  murder  to  manslaughter, 
the  cases  are  b}-  no  means  agreed  ;  and  any  rule  which  should  embrace 
all  the  cases  that  have  been  decided  in  reference  to  this  point,  would 
come  very  near  obliterating,  if  it  did  not  entirely  obliterate,  all  dis- 
tinction between  murder  and  manslaughter  in  such  cases.  We  must 
therefore  endeavor  to  discover  the  principle  upon  which  the  question 
is  to  be  determined.  It  will  not  do  to  hold  that  reason  should  be 
entireh'  dethroned,  or  overpowered  Ijy  passion  so  as  to  destroy  intelli- 
gent volition.  State  v.  Hill,  1  Dev.  &  Bat.  491  ;  Haile  v.  State,  1  Swan, 
248;  Young  r.  State,  11  Humph.  200.  Such  a  degree  of  mental  dis- 
turbance would  be  equivalent  to  utter  insanity,  and  if  the  result  of 
adequate  provocation,  would  render  the  perpetrator  morally  innocent. 
But  the  law  regards  manslaughter  as  a  high  grade  of  oflTence,  —  as  a 
felony.     On  principle,  therefore,  the  extent  to  which  the  passions  are 


484 


MAHER  V.   PEOPLK  [CHAP.  XIL 


re 


..quired  to  be  aroused  and  reason  obscured  must  be  considerably  short 
of  this,  and  never  beyond  that  degree  within  which  ordinary  men  have 
the  power,  and  are"  therefore  morally  as  well  as  legally  bound,  to 
restrain  their  passions.  It  is  only  on  the  idea  of  a  violation  of  this 
clear  duty,  that  the  act  can  be  held  criminal.  There  are  many  cases 
to  be  found  in  the  books  in  which  this  consideration,  plain  as  it  would 
seem  to  be  in  principle,  appears  to  have  been  in  a  great  measure  over- 
looked, and  a  course  of  reasoning  adopted  which  could  only  be  justified 
on  the  supposition  that  the  question  was  between  murder  and  excusable 
homicide. 

Tlie  principle  involved  in  the  question,  and  which  I  think  clearly 
deduciblc  from  the  majority  of  well  considered  cases,  would  seem  to 
su<yo-est,  as  the  true  general  rule,  that  reason  should,  at  the  time  of  the 
ac^  be  disturbed  or  obscured  by  passion  to  an  extent  which  might 
render  ordinary  men,  of  fair  average  disposition,  liable  to  act  rashly 
or  without  due  deliberation  or  reflection,  and  from  passion,  rather  than 
judgment. 

To  the  question  what  shall  be  considered  in  law  a  reasonable  or 
adequate  provocation  for  such  a  state  of  mind,  so  as  to  give  to  a 
homicide  committed  under  its  influence  the  character  of  manslaughter, 
on  principle,  the  answer,  as  a  general  rule,  must  be,  anything  the 
natural  tendency  of  which  would  be  to  produce  such  a  state  of  mind 
in  ordinary  men,  and  which  the  jury  are  satisfied  did  produce  it  in  the 
case  before  them,  —  not  such  a  provocation  as  must,  by  the  laws  of  the 
human  mind,  produce  such  an  effect  with  the  certainty  that  physical 
eflects  follow  from  physical  causes  ;  for  then  the  individual  could  hardly 
be  held  morally  accountable.  Nor,  on  the  other  hand,  must  the  pro- 
vocation in  every  case  be  held  sufficient  or  reasonable  because  such  a 
state  of  excitement  has  followed  from  it ;  for  then,  by  habitual  and 
long  continued  indulgence  of  evil  passions,  a  bad  man  might  acquire 
a  claim  to  mitigation  which  would  not  be  available  to  better  men,  and 
on  account  of  that  very  wickedness  of  heart  which,  in  itself,  constitutes 
an  aggravation  both  in  morals  and  in  law. 

In  determining  whether  the  provocation  is  sufficient  or  reasonable, 
ordinary  human  nature,  or  the  average  of  men  recognized  as  men  of 
fair  average  mind  and  disposition,  should  be  taken  as  the  standard,  — 
unless,  indeed,  the  person  whose  guilt  is  in  question  be  shown  to  have 
some  peculiar  weakness  of  mind  or  infirmit}'  of  temper,  not  arising  from 
wickedness  of  heart  or  cruelty  of  disposition. 

It  is  doubtless,  in  one  sense,  the  province  of  the  court  to  define  what, 
in  law,  will  constitute  a  reasonable  or  adequate  provocation,  but  not,  I 
think,  in  ordinary  cases,  to  determine  whether  the  provocation  proved 
in  the  particular  case  is  sufficient  or  reasonable.  This  is  essentially  a 
question  of  fact,  and  to  be  decided  with  reference  to  the  peculiar  facts 
of  each  particular  case.  As  a  general  rule,  the  court,  after  informing 
the  jury  to  what  extent  the  passions  must  be  aroused  and  reason 
obscured  to  render  the  homicide  manslaughter,  should  inform  them 


SECT.  VII.]  M.\HER   V.   PEOPLE.  485 

that  the  provocation  must  be  one  the  tendency  of  which  would  be  to 
produce  such  a  degree  of  excitement  and  disturbance  in  the  minds  of 
ordinary  men  ;  and  if  they  should  find  such  provocation  from  the  facts 
proved,  and  should  further  find  that  it  did  produce  that  effect  in  the 
particular  instance,  and  that  the  homicide  was  the  result  of  such  prov- 
ocation, it  would  give  it  the  character  of  manslaughter.  Besides  the 
consideratiou  that  the  question  is  esseutially  one  of  fact,  jurors,  from 
the  mode  of  their  selection,  coming  from  the  various  classes  and  occu- 
pations of  society,  and  conversant  with  the  practical  affairs  of  life,  are, 
in  my  opinion,  much  better  qualified  to  judge  of  the  sufficiency  and 
tendency  of  a  given  provocation,  and  much  more  likely  to  fix,  with 
some  degree  of  accuracy,  the  standard  of  what  constitutes  tlie  average 
of  ordinary  human  nature,  than  the  judge  whose  habits  and  course  of 
life  give  him  much  less  experience  of  the  workings  of  passion  in  the 
actual  conflicts  of  life. 

The  judge,  it  is  true,  must,  to  some  extent,  assume  to  decide  upon 
the  suflScieucy  of  the  alleged  provocation  when  the  question  arises 
upon  the  admission  of  testimony ;  and  when  it  is  so  clear  as  to  admit 
of  no  reasonable  doubt,  upon  any  theory,  that  the  alleged  provocation 
could  not  have  had  any  tendency  to  produce  such  state  of  mind  in 
ordinary  men,  he  may  properly  exclude  the  evidence ;  but,  if  the 
alleged  provocation  be  such  as  to  admit  of  any  reasonable  doubt 
whether  it  might  not  have  had  such  tendency,  it  is  much  safer,  I 
think,  and  more  in  accordance  with  principle,  to  let  the  evidence  go  to 
the  jury  under  the  proper  instructions.  As  already  intimated,  the 
question  of  the  reasonableness  or  adequacy  of  the  provocation  must 
depend  upon  the  facts  of  each  particular  case.  That  can,  with  no 
propriety,  be  called  a  rule  (or  a  question)  of  law  which  must  vary 
with,  and  depend  upon  the  almost  infinite  variety  of  facts  presented  by 
the  various  cases  as  they  arise.  See  Stark,  on  Ev.,  Araer.  ed.  1860, 
pp.  67G  to  680.  The  law  cannot  with  justice  assume,  by  the  light  of 
past  decisions,  to  catalogue  all  the  various  facts  and  combinations  of 
facts  which  shall  be  held  to  constitute  reasonable  or  adequate  provoca- 
tion. Scarcely  two  past  cases  can  be  found  which  are  identical  in  all 
their  circumstances ;  and  there  is  no  reason  to  hope  for  greater  uni- 
formity in  future.  Provocations  will  be  given  without  reference  to  any 
previous  model,  and  the  passions  they  excite  will  not  consult  the 
precedents. 

The  same  principles  which  govern  as  to  the  extent  to  which  the 
passions  must  be  excited  and  reason  disturbed  apply  with  equal  force 
to  the  time  during  which  its  continuance  may  be  recognized  as  a  ground 
for  mitigating  the  homicide  to  the  degree  of  manslaughter,  or,  in  other 
words,  to  the  question  of  cooling  time.  This,  like  the  provocation 
itself,  must  depend  upon  the  nature  of  man  and  the  laws  of  the  human 
mind,  as  well  as  upon  the  nature  and  circumstances  of  the  provocation, 
the  extent  to  which  the  passions  have  been  aroused,  and  the  fact 
whether  the  injury  inflicted  by  the  provocation  is  more  or  less  per- 


486  MAKER  V.   PEOPLE.  fCHAP.  XII. 

manent  or  irreparable.  The  passion  excited  by  a  blow  received  in  a 
siulden  quarrel,  though  perhaps  equally  violent  for  the  moment,  would 
be  likely  much  sooner  to  subside  than  if  aroused  by  a  rape  committed 
upon  a  sister  or  a  daughter,  or  the  discovery  of  an  adulterous  inter- 
course with  a  wife ;  and  no  two  cases  of  the  latter  kind  would  be  likely 
to  be  identical  in  all  their  circumstances  of  provocation.  No  precise 
time,  therefore,  in  hours  or  minutes,  can  be  laid  down  by  the  court,  as 
a  rule  of  law,  within  which  the  passions  must  be  held  to  have  subsided 
and  reason  to  have  resumed  its  control,  without  setting  at  defiance  the 
laws  of  man's  nature,  and  ignoring  the  very  principle  on  which  prov- 
ocation and  passion  are  allowed  to  be  shown  at  all,  in  mitigation  of 
the  offence.  The  question  is  one  of  reasonable  time,  depending  upon 
all  the  circumstances  of  the  particular  case  ;  and  where  the  law  has 
not  defined,  and  cannot  without  gross  injustice  define  the  precise  time 
which  shall  be  deemed  reasonable,  as  it  has  with  respect  to  notice  of 
the  dishonor  of  commei'cial  paper.  In  such  case,  where  the  law  has 
defined  what  shall  be  reasonable  time,  the  question  of  such  reasonable 
time,  the  facts  being  found  by  the  jury,  is  one  of  law  for  the  court ; 
but  in  all  other  cases  it  is  a  question  of  fact  for  the  jury ;  and  the  court 
cannot  take  it  from  the  jury  b}'  assuming  to  decide  it  as  a  question  of 
law,  without  confounding  the  respective  provinces  of  the  court  and 
jury.  Stark.  Ev.,  ed.  of  18G0,  pp.  768,  769,  774,  775.  In  Rex  v. 
Howard,  6  C.  &  P.,  157,  and  Rex  v.  Lynch,  5  C.  &  P.  324,  this  question 
of  reasonable  cooling  time  was  expressly  held  to  be  a  question  of  fact 
for  the  jury.  And  see  Whart.  Cr.  L.,  4th  ed.,  §990  and  cases  cited. 
I  am  aware  there  are  man}'  cases  in  which  it  has  been  held  a  question 
of  law  ;  but  I  can  see  no  principle  on  which  such  a  rule  can  rest.  The 
court  should,  I  think,  define  to  the  jury  the  principles  upon  which  the 
question  is  to  be  decided,  and  leave  them  to  determine  whether  the 
time  was  reasonable  under  all  the  circumstances  of  the  particular  case. 
I  do  not  mean  to  say  that  the  time  may  not  be  so  great  as  to  enable 
the  court  to  determine  that  it  is  suflflcient  for  the  passion  to  have  cooled, 
or  so  to  instruct  the  jury,  without  error  ;  but  the  case  should  be  very 
clear.  And  in  cases  of  applications  for  a  new  trial,  depending  upon  the 
discretion  of  the  court,  the  question  may  ver}'  properly  be  considered  by 
the  court. 

It  remains  only  to  applj'  these  principles  to  the  present  case.  The 
proposed  evidence,  in  connection  with  what  had  already  been  given, 
would  have  tended  strongly  to  show  the  commission  of  adultery  by 
Hunt  with  the  prisoner's  wife,  within  half  an  hour  before  the  assault; 
that  the  prisoner  saw  them  going  to  the  woods  together,  under  circum- 
stances calculated  strongly  to  impress  upon  his  mind  the  belief  of  the 
adulterous  purpose ;  that  he  followed  after  them  to  the  woods ;  that 
Hunt  and  the  prisoner's  wife  were,  not  long  after,  seen  coming  from 
the  woods,  and  that  the  prisoner  followed  them,  and  went  in  hot  pursuit 
after  Hunt  to  the  saloon,  and  was  informed  by  a  friend  on  the  way 
that  they  had  committed  adultery  the  day  before  in  the  woods.     I  can 


SECT.  VII.]  MAKER   V.    I'EOPLK.  487 

not  resist  the  conviction  that  this  would  have  been  sufficient  evidence 
of  provocation  to  go  to  the  jiny,  and  from  which,  when  taken  in  con- 
nection with  the  excitement  and  ''great  perspiration"  exhibited  on 
entering  the  saloon,  the  hasty  manner  in  which  he  approached  and 
fired  the  pistol  at  Hunt,  it  would  have  been  competent  for  the  jury  to 
find  that  the  act  was  committed  in  consequence  of  the  pas.sion  excited 
by  the  provocation,  and  in  a  state  of  mind  which,  within  tlie  principle 
already  explained,  would  have  given  to  the  homicide,  had  death  ensued, 
the  character  of  manslaughter  only.  In  holding  otherwise  the  court 
below  was  doubtless  guided  by  those  cases  in  which  courts  have  arbi- 
trarily assumed  to  take  tlie  question  from  the  jury,  and  to  decide  upon 
the  facts  or  some  particular  fact  of  the  case,  whether  a  sufficient 
provocation  had  been  shown,  and  what  was  a  reasonable  time  for 
cooling. 


488  ANONYMOUS,  [CHAP.  XUI 


CHAPTER  Xm. 
LARCENY. 


SECTION  I. 

What  Property  is  the  Subject  of  Larceny. 

Bracton  De  Legibus,  150  b.  Larceny  is,  according  to  the  law,  the 
fraudulent  taking  of  the  property  of  another,  with  intent  to  steal,  against 
the  will  of  the  owner.* 


ANONYMOUS. 

Assizes.     1338. 

[Repm-ted  Year  Book,  U  Sr  \2  Ed.  III.,  640.] 

A  FORESTER  was  indicted  "  that  he  feloniously  cut  down  and  carried 
awa}-  trees."  The  justices  would  not  arraign  him,  for  the  felling  of  trees 
which  are  so  annexed  to  the  soil  cannot  be  called  a  felony,  even  if  a 
stranger  had  done  it.  Besides,  here  perhaps  he  himself  had  the  keeping 
of  them.  But  because  it  was  possible  that  the  trees  were  first  of  all 
felled  by  the  lord  and  then  carried  away  by  the  forester,  they  questioned 
the  inquest,  who  said  that  he  was  the  forester  when  he  felled  and  car- 
ried them  awaj-.  Scharshulle  [J.],  to  the  inquest:  Did  the  forester 
conceal  the  trees  from  the  lord?  The  Inquest.  We  do  not  know. 
Aldeburgh  [J.].  Certainly  we  do  not  think  it  important  whether  he 
concealed  them  or  not ;  but  we  adjudge  that  it  is  no  felony,  because 
he  was  the  keeper ;  and  a  tree  is  part  of  the  freehold.* 

1  Furtum  est  secundum  leges  contractatio  rei  alienae  fraudulenta,  cum  animo 
furandi,  invito  illo  domino  cuius  res  ilia  fuerit. 
«  12  Lib.  Ass.,  32,  S.  C. 


SECT.  L]  rex   V.   WODY.  489 

REX  V.   WODY. 

Exchequer  Cuamuek.     1470. 

{RepoHed  Year  Book,  10  Ed.  IV.,  14,  pi.  9,  10.] 

One  William  Wcxly  was  indicted  for  that  he  feloniously  took  and 
carried  away  six  boxes,  with  charters  and  muniments  concerning  the 
inheritance  of  John  Culpepper  and  Nicholas  C,  etc.,  contained  in  the 
boxes. 

Suh/ard.  It  seems  that  it  is  not  felony,  for  the  sealed  boxes  shall 
be  called  of  the  same  nature  as  the  charters  contained  in  them,'  while 
the  charters  are  concerning  the  inheritance,  so  that  these  things  touch 
the  inheritance  of  the  realt}',  etc. 

Nele.  Every  felony  ought  to  be  a  loss  of  twelve  pence ;  but  iu 
detinue  of  charters,  or  of  sealed  boxes  with  charters  contained  in  them, 
those  in  the  Chancery  do  not  say  "  ad  valentiam^'  etc.,  for  they  cannot 
be  valued,  and  so  it  cannot  be  felony. 

Collow.  A  man  may  recover  damages  in  detinue  if  the  charters  are 
burned. 

All  the  justices  of  the  one  bench  and  of  the  other  were  assembled  in 
the  Exchequer  Chamber. 

Choke,  J.  It  seems  that  it  is  not  felony  for  two  reasons  :  first,  they 
are  so  far  real  that  it  cannot  be  felony.  For  they  are  not  chattels  real, 
but  are  real  in  themselves  ;  for  if  a  man  be  attainted  of  felony,  the  king 
shall  not  have  his  charters  concerning  his  land,  for  they  are  real,  but 
he  shall  have  his  wardship,  or  term,  for  they  are  chattels  real.  Quod 
fuit  coticessum  per  omnesjusticios. 

Yelverton,  J.,  said,  that  if  a  man  has  a  franchise  to  have  catalla 
felonum,  etc.,  still  he  shall  not  have  the  charters  concerning  the  land 
of  felons,  etc. 

MoYLE,  J.    The  lord  shall  have  the  charters  with  the  land,  etc. 

And  it  was  held  that  if  a  man  gives  omnia  bona  et  catalla  sua,  the 
charters  do  not  pass,  therefore  they  are  released,  etc. 

Choke,  J.  The  second  reason  is  because  they  cannot  be  valued, 
etc.  ;  for  in  detinue  for  charters  one  does  not  say  ad  valentiam,  etc., 
ut  supra,  etc. 

Littleton,  J.  The  reason  why  those  in  the  Chancery  do  not  say  ad 
valentiam  in  the  writs  ut  supra  is  only  the  precedent,  etc. ;  but  yet 
they  are  of  value,  for  in  detinue  of  charters,  if  the  charters  are  lost  or 
burned,  he  shall  recover  in  damages,  having  regard  to  the  loss  that  ho 
has  by  the  loss  of  the  charters ;  this,  therefore,  proves  tliat  they  are  of 
value.  And  though  the  terms  ad  valentiam  and  ad  dampnnm  are 
different,  yet  they  are  of  the  same  effect.     {Quod  fuit  negatum,  etc.) 

1  Upon  this  argument  being  urged  in  Reg.  v.  Powell,  5  Cox  C.  C  397,  Aldersov, 
B.,  said  :  "  I  .suppose,  then,  that  if  a  lion  was  stole  in  a  cage,  it  would  be  said  that  the 
cage  vf&s/ercE  naturce."  —  Ed. 


490.  ANONYMOUS.  [CHAP.  Xm. 

And  on  an  indictment  for  burglary,  sc.  for  breaking  a  house,  one  should 
not  sav  quod  f regit  domum  ad  valentiam,  etc. ;  and,  sir,  so  at  common 
law  wilful  burning  of  a  house  was  felony,  and  yet  one  should  not  say  ad 
valentiam,  etc. 

Billing,  C.  J.  Those  are  felonies  of  a  different  nature  from  rob- 
bery, etc. 

Littleton,  J.  Because  charters  concerning  the  inheritance  are  of 
greater  value  than  other  things,  therefore  it  is  reason  that  as  great 
punishment  should  be  inflicted  for  the  taking  of  them  as  of  other  things, 
etc.  And,  sir,  in  trespass  quare  pidlos  espervarios  ce2nt,  one  should 
state  the  price,  but  in  trespass  quare  parcum  f regit  et  damas,  etc., 
one  should  not  state  the  price,  etc.,  for  it  is  not  the  use  in  the 
Chancery. 

Bingham,  J.  In  j'our  case  quare  pullos  espervarios  in  nido^  etc., 
the  plaintiff  should  state  the  price,  for  the  property  in  them  is  in  him  ; 
for  the  nests  are  the  plaintiff's,  and  so  ai'e  those  which  are  in  the  nests, 
and  besides  cannot  flj'  out  of  your  possession,  etc. 

Nedham,  J.  Felony  is  only  of  such  thing  as  the  countrj'  may  have 
notice  of  the  value  of;  but  here  as  to  charters  within  the  boxes  they 
cannot  have  notice,  etc.,  of  the  value  of  them  ;  wherefore,  etc. 

Yelverton,  J.  Felon}'  cannot  be  of  any  goods  except  personal 
chattels  ;  for  a  man  cannot  take  my  ward  feloniously,  for  it  is  a  chattel 
real ;  and  it  was  held  that  a  deer  which  is  domesticated  may  be  stolen, 
and  so  when  it  is  dead.     And  so  of  fishes  taken  in  a  pond,  etc. 

And  then  it  was  advised  b}'  them  all  that  this  is  not  felon}',  wherefore 
in  the  King's  Bench  the  defendant  was  discharged,  etc. 


ANONYMOUS. 
Opinion  of  the  Justices.     1528. 

[Reported  Year  Book,  19  Henry  VIIL,  2,  pi.  11.] 

A  QUESTION  was  propounded  to  all  the  Justices  by  the  Chancellor.  If 
a  man  feloniously  steals  peacocks  which  are  tame  and  domesticated, 
whether  it  is  felony  or  not.  And  by  Fitzherbert  and  Inglefield  [JJ.] 
it  was  said  that  it  is  not  felony,  because  they  are  ferce  naturm  like 
doves  in  a  dove-cote ;  and  if  the  young  of  such  doves  are  stolen,  it  is 
not  felony.  The  same  law  of  herons  taken  out  of  the  nest,  or  of  swans 
taken,  or  of  a  buck,  or  hind,  which  are  domesticated,  or  of  hares  taken 
out  of  a  garden  which  is  surrounded  with  a  wall,  etc.  The  same  law  of 
a  mastiff,  hound,  or  spaniel,  or  of  a  goshawk  which  is  reclaimed ;  for 
they  are  properly  things  of  pleasure  rather  than  of  profit.  And  so  the 
peacock  is  a  bird  more  for  pleasure  than  for  profit,  for  often  they 
intentionally  destroy  all  the  young  except  one. 


SECT.  I.]  REX   V.    SEARING.  491 

And  it  was  also  agreed  that  apples  taken  out  of  the  orchard  which 
were  growing  on  the  trees  tit  the  time  of  taiiing,  or  trees  growing  upon 
the  [soil?]  at  the  time  of  taking,  or  grass  cut  and  carried  away,  is  not 
felou}-,  and  even  where  they  are  talien  with  felonious  intent,  because 
these  things  at  the  time  of  taking  are  parcel  of  the  franktenement ;  but 
if  my  trees  are  cut  down  by  me,  or  my  grass  growing  on  my  land  is 
by  me  cut  and  severed,  and  afterward  another  with  felonious  intent 
steals  it,  that  is  felony. 

FiTZJAMES  [C.  J.]  and  the  other  justices  said  that  peacocks  are 
commonly  of  the  same  nature  as  hens  or  capons,  geese  or  ducks,  and 
the  owner  has  property  in  them,  and  they  have  animum  recertendi,  and 
they  are  not  fowls  of  warren,  like  pheasant,  partridge,  conies,  or 
animals  of  that  sort,  for  the  taking  of  these  with  felonious  intent 
is  not  felon}-. 

And  in  the  end  it  was  agreed  by  all  the  justices,  that  this  taking  of 
peacocks  was  felony  for  the  cause  aforesaid,  Quod  Nota. 


REX  V.  SEARING. 

Crown  Case  Reserved.     1818. 

[Reported  Russell  ^  Ryan,  350.] 

The  prisoner  was  tried  before  Mr.  Baron  Wood  at  the  Lent  Assizes 
for  Hertfordshire  in  the  year  1818  for  larceny  in  stealing  "  five  live 
tame  ferrets  confined  in  a  certain  hutch,"  of  the  price  of  fifteen  shil- 
lings, the  property  of  Daniel  Flower. 

The  jury  found  the  prisoner  guilty ;  but  on  the  authority  of  2  East, 
P.  C.  614,  where  it  is  said  that  ferrets  (among  other  things)  are  con- 
sidered of  so  base  a  nature  that  no  larceny  can  be  committed  of  them, 
the  learned  judge  respited  the  judgment  until  the  opinion  of  the  judges 
could  be  taken  thereon. 

It  appeared  in  evidence  that  ferrets  are  valuable  animals,  and  those 
in  question  were  sold  by  the  prisoner  for  nine  shillings. 

In  Easter  term,  1818,  the  judges  met  and  considered  this  case  ;  they 
were  of  opinion  that  ferrets  (though  tame  and  salable)  could  not  be 
the  subject  of  larceny  and  that  judgment  ought  to  be  arrested. 


/    /    ^^    i    ^      / 


492  REGINA  V.   CHEAFOR.  [CHAP.  Xm. 


REGINA  V.   CHEAFOR. 
Crown  Case  Reserved.  1851. 

[Reported  5  Cox  C.  C.  367.] 

At  the  Quarter  Sessions  for  the  county  of  Nottingham,  held  at  East 
Retford,  on  the  7th  of  Jul}',  1851,  the  prisoner  was  indicted  for  felon- 
iousl}'  stealing  four  tame  pigeons,  the  propert}-  of  John  Mansell.  The 
pigeons,  at  the  time  they  wei*e  taken  b}'  the  prisoner,  were  in  the  prose- 
cutor's dove-cote,  over  a  stable  on  his  premises,  being  an  ordinary 
dove-cote,  and  having  holes  at  the  top  for  the  ingress  and  the  egress 
of  the  pigeons,  and  having  a  door  in  the  floor,  which  was  kept  locked. 
The  prisoner  entered  the  dove-cote  at  twelve  o'clock  at  night,  breaking 
open  the  door  and  taking  away  the  pigeons.  The  prisonei-'s  counsel 
contended  that  the  pigeons  being  at  liberty  at  any  time  to  go  in  and 
out  of  the  dove-cote,  and  therefore  not  reclaimed  and  in  a  state  of  con- 
finement, were  not  the  subjects  of  larcen}'.  The  chairman  directed 
the  jury  that,  in  his  opinion,  the  view  contended  for  b}'  the  prisoner's 
counsel  was  correct,  and  that  the  pigeons  were  not  propcrlj'  the 
subjects  of  larcen}-.  The  jury  found  the  prisoner  guilty  of  larceny  ; 
but  judgment  was  postponed  to  ask  the  opinion  of  this  court  whether 
the  learned  chairman's  direction  to  the  jurj-  was  right,  and  whether  the 
prisoner,  under  the  facts  stated,  was  properly  convicted. 

The  case  was  not  argued  by  counsel. 

Lord  Campbell,  C.  J.,  delivered  the  judgment  of  the  court.  After 
reading  the  case,  his  Lordship  said  that  they  thought  the  direction  of 
the  chairman  was  clearly  wrong.  Pigeons  must,  from  the  nature  of 
them,  have  free  egress  to  the  open  air :  and  the  question  therefore  was, 
whether  there  could  be  a  larceny  of  tame  pigeons.  If  not,  neither 
could  there  be  larceny  of  chickens,  ducks,  or  any  poultry.  Whether 
the}'  were  tame  or  not  was  a  question  for  the  jur}'.  Luke's  case  (Rose. 
Cr.  Ev,  577)  is  said  by  Mr.  Greaves ^  to  have  been  determined  on  the 
ground  that  the  pigeons  were  reclaimed,  not  that  they  were  shut  up  in 
boxes.  It  had  been  mistakenly  supposed  that  Baron  Parke  had 
decided  that  pigeons  were  not  the  subjects  of  larceny  unless  strictly 
confined ;  there  is  no  question  that  they  are,  even  though  they  are 
allowed  the  liberty  of  going  to  enjoy  the  air  when  they  please. 

Conviction  affirmed. 

1  The  passage  referred  to  i-s  in  2  Russ.  on  Crimea,  p.  83,  as  follows :  "  Where 
pigeons  were  shut  up  in  their  boxes  every  night,  and  stolen  out  of  such  boxes  during  the 
night,  Parke,  B.,  held  it  to  be  larceny."  Upon  which,  in  Mr.  Greaves'  edition,  there 
is  the  following  note :  "  Luke's  case,  Rose.  Cr.  Evid.  577,  and,  ex  relatione,  Mr. 
Granger.  The  case  was  determined  on  the  ground  that  the  pigeons  were  reclaimed  ; 
and  not  on  the  ground  that  they  were  shut  up  in  their  boxes  at  the  time  they  were 
taken."  —  Rep. 


SECT.  1.1  REGINA   V.    WATTS.  493 


REGINA  V.  WATTS. 
Crown  Case  Reserved.     1854. 

[Reported  6  Cox  C.  C.  304.] 

The  prisoner,  William  Mote  Watts,  was  indicted  at  the  Quarter 
Sessions  lor  the  North  Riding  of  Yorkshire,  on  the  2d  of  June,  18o3, 
for  stealing  on  the  3d  da}'  of  May,  18o3,  a  piece  of  paper,  the  propert}' 
of  tlie  prosecutor,  Francis  Patteson,  and  was  convicted.  The  piece  of 
paper  found  to  have  been  stolen  had  written  upon  it  when  taken  \)y  the 
prisoner,  as  alleged  in  the  indictment,  an  agreement  between  the  prose- 
cutor and  the  prisoner,  signed  by  each  of  thera.  The  agreement  could 
not  be  produced,  but  secondar}'  evidence  of  it  was  received,  from  wiiich 
it  appeared  that  the  prisoner  contracted  thereb}-  to  build  two  cottages 
for  the  prosecutor,  for  a  sum  specified,  according  to  certain  plans  and 
specifications,  and  the  latter  agreed  to  pay  two  instalments,  being  part 
of  the  price  agreed  on,  at  certain  stages  of  the  works,  and  the  remain- 
der on  completion  ;  and  it  was  stipulated  that  any  alterations  that 
might  take  place  during  the  progress  of  the  building  should  not  affect 
the  contract,  but  should  be  decided  upon  by  the  employer  and  em- 
plo3'ed,  previous  to  such  alterations  taking  place.  Under  this  instru- 
ment the  work  was  commenced  and  continued.  At  the  time  when  it  was 
stolen  by  the  prisoner,  as  alleged,  the  work  was  going  on  under  it; 
nevertheless  it  was  proved  at  the  trial  that  when  the  agreement  was 
stolen  the  prisoner  had  been  paid  all  the  money  which  he  was  entitled  to 
under  it,  although  there  was  money  owing  to  him  for  extras  and  alter- 
ations. The  agreement  was  unstamped.  The  counsel  for  the  prisoner 
objected  at  the  close  of  the  case  for  the  prosecution,  that  from  the 
evidence  it  was  clear  that  at  the  time  the  piece  of  paper  referred  to  in  the 
indictment  was  taken  by  the  prisoner,  it  was,  in  reaUty,  a  subsisting 
and  valid  agreement,  and  therefore  not  the  subject  of  larcen}'  (as  a 
piece  of  paper  only)  at  common  law.  The  question  for  the  opinion  of 
the  court  is,  whether,  under  the  circumstances  above  stated,  the 
prisoner  could  be  lawfully  convicted  of  feloniously  stealing  a  piece  of 
paper,  as  charged  in  the  indictment.  No  judgment  was  passed  on  the 
prisoner,  and  he  was  discharged  on  recognizance  of  bail  to  appear  and 
receive  judgment  when  required. 

This  case  was  before  the  court  on  the  12th  November,  1853,  and 
was  sent  back  to  be  restated,  and  an  alteration  was  made  in  it  to  the 
effect  that  the  agreement  was  one  which  required  a  stamp.* 

Lord  Campbell.  C.  J.  I  am  of  opinion  that  this  con\nction  is 
wrong.  I  think  that  the  prisoner  could  not,  under  the  circumstances 
stated,  be  indicted  for  stealing  a  piece  of  paper.  If  the  agreement  had 
been  stamped,  it  seems  to  be  allowed,  notwithstanding  the  ingenious 

1  The  arguments  are  omitUd. 


494  KEGINA  V.    WATTS.  [CHAP.  XIII. 

argument  of  Mr,  Price,  that  an  indictment  for  stealing  a  piece  of  paper 
could  not  be  supported ;  because  then  it  would  be  what  is  commonly 
called  a  chose  in  action,  and  by  the  common  law  larcen}'  cannot  be 
committed  of  a  chose  in  action.  Strictl}'  speaking,  the  instrument  of 
course  is  not  a  chose  in  action,  but  evidence  of  it,  and  the  reason  of 
the  common-law  rule  seems  to  be  that  stealing  the  evidence  of  the  right 
does  not  interfere  with  the  right  itself ;  jusnon  in  tabtdis  ;  the  evidence 
may  be  taken  but  the  right  still  remains.  At  all  events,  whatever  be 
the  reason  of  the  rule,  the  common  law  is  clear  that  for  a  chose  in 
action  larceny  cannot  be  supported  ;  and  the  legislature  has  repeatedly 
recognized  that  rule  by  making  special  provision  with  regard  to  instru- 
ments which  are  choses  in  action,  and  of  which  but  for  those  enact- 
ments larceny  could  not  be  committed.  As  to  this  not  being  a  chose 
in  action,  because  all  that  was  due  had  been  paid  upon  it,  it  appears 
that  the  agreement  is  still  executor}',  and  might  be  used  by  either  side  to 
prove  their  rights.  Then  comes  the  objection  as  to  its  not  being  stamped  ; 
but  though  it  is  not  stamped,  I  am  of  opinion  that  it  is  an  agreement. 
There  is  a  ver}'  clear  distinction  between  instruments  which  without  a 
stamp  are  whollj'  void,  and  those  which  may  be  rendered  available  at 
any  moment  b^'  having  a  stamp  impressed  upon  them.  There  are 
many  cases  in  which  an  unstamped  agreement  is  considered  evidence 
of  a  right.  When  the  question  arises  at  Nisi  Prius,  as  soon  as  it 
appears  that  the  agreement  was  reduced  into  writing,  parole  evidence 
is  excluded,  because  the  written  instrument  is  the  proper  and  only 
evidence ;  and  Bradley  v.  Bardsley  (14  M.  &  W.  873)  is  strong  to 
show  that  the  court  considers  an  unstamped  agreement  evidence  of  a 
right.  To  an  action  on  an  agreement  a  plea  that  it  was  not  stamped  is 
clearl}'  bad,  for  the  agreement  maj'  be  stamped  even  pending  the  trial, 
and  may  then  be  given  in  evidence,  as  the  stamping  reflects  back  to  the 
period  of  the  making  of  the  instrument.  I  agree  that  we  must  look  at 
the  state  of  the  instrument  at  the  time  of  the  larceny  committed  ;  but 
it  then  had  a  potentialit}'  of  being  rendered  available,  and  it  was 
evidence  of  an  agreement ;  it  was  therefore  evidence  of  a  chose  in 
action,  and  not  the  subject  of  larceny'. 

Parke,  B.  I  am  of  opinion  that  the  conviction  is  right.  There 
is  no  doubt  that  at  common  law  larcen}'  cannot  be  committed  of  any 
instrument  which  is  the  evidence  of  a  chose  in  action  ;  but  I  think  that 
when  this  instrument  was  stolen  it  was  not  evidence  of  a  chose  in 
action.  Being  unstamped,  it  was  not  available  either  in  law  or  in 
equity,  and  by  the  operation  of  the  Stamp  Act  could  not  be  used  for 
the  purpose  of  showing  a  right.  It  was  a  piece  of  paper,  and  I  differ 
from  Lord  Campbell  in  thinking  that  the  potentiality  of  converting  a 
chattel  into  evidence  of  a  chose  of  action  is  sufficient  to  prevent  it 
from  being  the  subject  of  larcen}-.  Like  the  parchment  on  which  a 
deed  is  written,  and  which  is  nothing  but  a  piece  of  parchment  until 
the  instrument  is  perfected,  this  in  its  imperfect  state  was  no  evidence 
of  an  agreement,  but  was  a  piece  of  paper  only.     Where  a  plaintiff  is 


SECT.  I.]  REGINA   V.   WATTS.  495 

prevented  from  giving  parole  evidence  of  a  written  agreement,  it  is 
because  lie  had  the  power  of  giving  better  evidence  of  it  by  getting 
the  instrument  stamped,  and  if  he  does  not  get  it  stamped,  it  is  his  own 
fault.  If  the  instrument  is  lost  and  he  cannot  get  it  stamped,  then 
still  parole  evidence  of  it  is  inadmissible.  In  the  present  case  there- 
fore, I  think  that  that  which  was  stolen  was  merely  a  piece  of  paper 
capable  of  being  converted,  but  not  yet  actually  converted  into  a  valid 
agreement,  or  the  evidence  of  an  agreement,  and  it  is  solely  as  evi- 
dence of  an  agreement  that  the  common  law  would  prevent  it  from 
being  the  subject  of  larceny. 

Alderson,  IJ.  I  agree  with  Lord  Campbell  that  this  was  an  agi'ee- 
ment  at  the  time  it  was  stolen.  If  the  writing  only  becomes  an  agree- 
ment at  the  time  when  it  is  stamped,  how  is  it  that  you  may  declare 
upon  an  unstamped  agreement?  If  the  agreement  only  dates  from  the 
stamping,  the  cause  of  action  does  not  arise  until  the  time  of  stamping, 
and,  therefore,  subsequently  to  the  declaration.  This  seems  to  prove 
that  the  thing  has  existence  as  an  agreement,  though  without  a  stamp 
it  is  not  admissible  in  evidence.  The  reason  why  title-deeds  and 
choses  in  action  are  not  the  subject  of  larcen}-,  is  because  the  parch- 
ment is  evidence  of  the  title  to  land,  and  the  written  paper  is  evidence 
of  a  right;  and,  though  the  instrument  is  stolen,  the  right  remains  the 
same.  It  has,  however,  no  existence  in  point  of  law,  as  a  piece  of 
paper  or  parchment  merel}',  but  is  to  be  considered  as  part  of  the  right 
or  title ;  and  the  extent  to  which  this  is  carried  appears  from  the 
passage  in  Lord  Coke  (3  Inst.  109),  in  which  even  the  box  containing 
the  charters  is  treated  as  part  of  the  title  also.  The  paper  becomes 
evidence  of  a  right,  and  ceases  to  have  an}'  existence  as  anything 
else. 

Coleridge,  J.  I  am  of  the  same  opinion  with  Lord  Campbell  and 
my  brother  Alderson.  It  is  admitted  that  if  this  agi'eement  had  been 
stamped,  it  would  not  have  supported  a  charge  of  stealing  a  piece  of 
paper,  a  higher  character  having  been  given  it,  and  its  character  as  a 
piece  of  paper  having  been  thereby  absorbed  ;  and,  though  unstamped, 
I  think  that  is  still  the  case.  If  the  objection  was  taken  at  Nisi  Prius, 
the  judge  would  look  at  the  paper  to  see  what  its  character  was ;  it 
would  then  appear  to  have  written  on  it  an  agreement ;  and,  but  for 
the  Stamp  Act,  it  would  be  the  evidence  and  the  onl}'  evidence  of  the 
agreement ;  and  even,  though  rendered  inadmissible  b}'  that  Act,  it  has 
the  effect  of  excluding  all  parole  evidence  of  that  contract.  It  is  true 
that  it  is  not  in  a  condition  in  which  it  can  be  effectuall}'  sued  upon  ; 
but  it  is  capable  of  being  rendered  complete  as  evidence,  b}-  being 
stamped ;  and  it  would  not  acquire  any  new  character  by  the  stamp- 
ing; it  would  still  be  the  same  evidence  of  a  chose  in  action,  rendered 
admissible  in  evidence  by  reason  of  the  stamp.  As  soon  as  the  instru- 
ment is  signed  it  becomes  an  agreement,  and  it  is  only  because  the 
stamp  laws  interfere  that  it  is  prevented  from  being  used  in  evidence. 
The  point  is   extremely  subtle ;    and  one   regrets  that  the  fate  oi 


496  REGINA  V.   SHIUKLE.  [CHAP.  XIIL 

parties  in  a  court  of  justice  should  depend  upon  distinctions  so  nice ; 
but  upon  the  best  consideration  which  I  can  give  to  the  case,  it  seems 
to  me  that  the  conviction  is  wrong. 

Maule,  J.  I  am  of  the  same  opinion.  I  think,  indeed  ever3'body 
thinks,  that  this  is  an  unstamped  agreement ;  and  if  it  is  an  agreement, 
it  is  not  the  subject  of  larceny.  When  one  speaks  of  a  piece  of  paper  as 
being  an  agreement,  it  means  that  the  paper  is  evidence  of  the  right ; 
and  as  a  right  cannot  be  the  subject  of  larceny,  neither  is  the  paper 
which  is  evidence  of  it. 

WiGHTMAN,  J.,  and  Cressvtell,  J.,  concurred. 

Platt,  B.  I,  also,  am  of  the  same  opinion.  If  an  action  were 
brought  upon  this  instrument,  the  declaration  and  all  the  pleadings 
would  describe  it  as  an  agreement;  and  it  becomes  so,  in  my  opinion, 
as  soon  as  it  is  signed  b}-  both  parties,  though  not  available  in  evi- 
dence without  the  impression  of  a  stamp.  The  mode  of  taking  the 
objection  at  Nisi  Prius  proves  the  same  thing.  The  witness  is  asked 
whether  the  agreement  was  not  in  writing;  and  when  he  answers 
"  3"es,"  and  the  instrument  is  produced,  the  judge  looks  at  it,  and 
finding  it  to  be  an  agreement  (because  upon  no  other  ground  could  he 
do  so),  rejects  it  for  want  of  a  stamp.  It  would  surely  be  strange  to 
hold  that  it  was  no  agreement  until  it  was  stamped,  when  the  necessity 
for  a  stamp  arises  from  its  being  an  agreement.  According  to  that 
argument,  if  the  instrument  is  stamped  the  prisoner  must  be  acquitted  ; 
but  if  not  stamped,  convicted.  But  it  seems  to  me  that  that  would  be 
to  bring  a  man  within  the  reach  of  the  criminal  law  by  a  side  wind,  and 
a  degree  of  subtlety  consistent  neither  with  law  or  justice. 

Williams,  J.,  and  Martin,  B.,  concurred. 

Crompton,  J.  I  think  there  is  sufficient  proof  that  this  was  a  sub- 
sisting agreement ;  and  it  wants  stamping  because  it  is  an  agreement. 

Conviction  reversed. 


REGINA  V.   SHICKLE. 

Crown  Case  Reserved.  1868. 
[Reported  L.  R.  \  C.  C.  iJ.  158 ;  11  Cox  C.  C.  189.] 

The  following  case  was  stated  by  Cockburn,  C.  J. :  — 

James  Shickle  was  tried  before  me  at  the  last  assizes  for  the  County 

of    Suffolk   on   an   indictment  for  larceny   for   stealing   eleven   tame 

partridges. 
There  was  no  doubt  that  the  prisoner  had  taken  the  birds  animo 

furandi,  but  a  question  arose  whether  the  birds  in  question  could  be  the 

subject  of  larcen3' ;  and  the  prisoner  having  been  convicted,  I  reserved 

the  point  for  the  consideration  of  the  court. 


SECT.  I.]  REGINA   V.   SHICKLE.  497 

The  birds  in  question  had  been  reared  from  eggs  which  had  been 
taken  from  the  nest  of  a  hen  partridge,  and  which  had  been  phictd 
under  a  common  hen.  TLey  were  about  three  weeks  old,  and  could  i\y 
a  little.  The  hen  had  at  first  been  kept  under  a  coop  in  the  prosecu- 
tor's orchard,  the  young  birds  running  in  and  out,  as  the  brood  of  a 
hen  so  confined  are  wont  to  do.  The  coop  had  however  been  removed 
and  the  hen  set  at  liberty,  but  the  young  birds  still  remained  about  the 
place  with  the  hen  as  her  brood  and  slept  under  her  wings  at  nigiit. 

It  is  well  known  that  birds  of  a  wild  nature,  reared  under  a  common 
hen,  when  in  the  course  of  nature  they  no  longer  require  the  protection 
and  assistance  of  the  hen  and  leave  her,  betake  themselves  to  the 
woods  or  fields,  and  after  a  short  time  differ  in  no  respect  from  birds 
reared  under  a  wild  hen  of  their  own  species. 

The  birds  in  question  were  neither  tame  bj'  nature  nor  reclaimed. 
If  they  could  be  said  to  be  tame  at  all  it  was  only  that  their  instinct 
led  them  during  their  age  of  helplessness  to  remain  with  the  hen.  On 
their  attachment  to  the  hen  ceasing,  the  wild  instincts  of  their  nature 
would  return  and  would  lead  them  to  escape  from  the  dominion  and 
neighborhood  of  man.  On  the  other  hand,  from  their  instinctive  at- 
tachment to  the  hen  that  had  reared  them,  and  from  their  inability  to 
escape,  they  were  practically'  in  the  power  and  dominion  of  the  prose- 
cutor. The  question  is  whether,  under  the  circumstances,  there  can  be 
such  property  in  birds  of  this  description  as  can  be  the  subject-matter 
of  larcenj'. 

Douglas,  for  the  prisoner.  These  birds  a,referce  7iatur(B,  and  unless 
reclaimed  are  not  the  subject  of  larceny.  The  ease  finds  that  they 
were  not  tame  nor  reclaimed ;  that  they  were  restrained  by  their  in- 
stinct only  from  betaking  themselves  to  the  woods  or  fields,  not  being 
confined  in  any  way.  They  could  not  therefore  be  the  subject  of 
larcen}'. 

No  counsel  appeared  for  the  Crown. 

BoviLL,  C.  J.  I  am  of  opinion  that  upon  the  facts  stated,  the  ques- 
tion asked  of  us  must  be  answered  in  the  affirmative,  and  that  the 
conviction  is  right.  The  case  states  that  "  from  their  inability  to  es- 
cape they  were  practically  in  the  power  and  dominion  of  the  prosecu- 
tor." That  is  sufficient  to  decide  the  point.  In  Regina  v.  Cory,  10  Cox 
C.  C.  23,  the  law  on  the  subject  is  very  clearly  laid  down  by  my  brother 
Channell.  He  there  says,  speaking  of  pheasants,  hatched  under  cir- 
cumstances similar  to  those  here  :  "  These  pheasants,  having  been 
hatched  by  hens  and  reared  in  a  coop,  were  tame  pheasants  at  the 
time  they  were  taken,  whatever  might  be  their  destiny  afterwards. 
Being  thus,  the  prosecutor  had  such  a  property  in  them  that  they  would 
become  the  subject  of  larceny',  and  the  inquiry  for  stealing  them 
would  be  of  precisely'  the  same  nature  as  if  the  birds  had  been  com- 
mon fowls  or  any  other  poultr}^  the  character  of  the  birds  in  no  way 
affecting  the  law  of  the  case,  but  onl}'  the  question  of  identit}'."  In 
that  statement  of  the  law  we  all  concur.    The  question  here  is,  Were 

82 


498  STATE  V.   TAYLOR.  [CHAP.  XIIL 

these  birds  the  subject  of  property?  They  were  so  when  first  hatched, 
and  they  remained  so  at  the  time  they  were  taken  by  the  prisoner, 
though  it  might  be  that  at  a  later  period  they  would  become  wild 
and  cease  to  have  an  owner.  The  prisoner  therefore  was  rightly 
convicted. 

Channell,  B.,  concurred. 

Byles,  J.  I  am  of  the  same  opinion.  The  usual  cases  of  larceny 
of  animals  are  those  of  animals  which  being  at  first  wild  have  become 
tame  and  reclaimed.  In  this  case  the  only  difference  is  that  the  birds 
here  are  tame  and  have  been  so  from  their  birth,  though  they  may  be- 
come wild  at  a  future  time. 

Blackburn  and  Lush,  JJ.,  concurred. 

Conviction  affirmed} 


STATE  V.  TAYLOR. 
Supreme  Court  of  New  Jersey.     1858. 

[Reported  3  Butcher,  117.] 

Green,  C.  J.^  The  indictment  charges  the  defendant  with  stealing 
*'  eighteen  bushels  of  oysters,  of  the  value  of  eighteen  dollars,  of  the 
goods  and  chattels  of  one  George  Hildreth."  It  is  objected  that  oysters 
being  animals  ferce  naturoe,  there  can  be  no  property  in  them,  unless 
they  be  dead  or  reclaimed,  or  tamed,  or  in  the  actual  power  or  posses- 
sion of  the  claimant ;  and  that  the  want  of  such  averment  is  a  fatal 
defect  in  the  indictment.  2  Bla.  Com.  390,  392  ;  Arch.  C.  P.  116  ;  3 
Chitty's  Cr.  L.,  947 ;  Wharton's  C.  L.  §§  1754-55. 

The  principle,  as  applied  to  aniraais /erog  naiurcB,  is  not  questioned. 
But  oysters,  though  usually  included  in  that  description  of  animals, 
do  not  come  within  the  reason  or  operation  of  the  rule.  The  owner 
has  the  same  absolute  property  in  them  that  he  has  in  inanimate  things 
or  in  domestic  animals.  Like  domestic  animals,  they  continue  perpetu- 
ally in  his  occupation,  and  will  not  stray  from  his  house  or  person. 
Unlike  animals /eroewaiwrce,  they  do  not  require  to  be  reclaimed  and 
made  tame  by  art,  industry,  or  education ;  nor  to  be  confined,  in  order 
to  be  within  the  immediate  power  of  the  owner.  If  at  liberty,  they 
have  neither  the  inclination  nor  the  power  to  escape.  For  the  purposes 
of  the  present  inquiry,  they  are  obviously  more  nearly  assimilated  to 
tame  animals  than  to  wild  ones,  and,  perhaps,  more  nearly  to  inanimate 
objects  than  to  animals  of  either  description.  The  indictment  could 
not  aver  that  the  oysters  were  dead,  for  they  would  then  be  of  no  value  ; 
nor  that  they  were  reclaimed  or  tamed,  for  in  this  sense  they  were  never 

1  See  also  Regina  v.  Head,  1  F.  &  T.  350. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  Part  of  the  opinion,  not 
involving  any  question  of  larceny,  is  omitted. 


SECT.  I.]  STATE   V.   TAYLOR.  499 

wild,  and  were  not  capable  of  domestication ;  nor  that  they  were  con- 
fined, for  that  would  be  absurd.  The  only  averment  that  could  be 
made  is,  that  they  had  been  gathered,  or  were  in  the  actual  possession 
of  the  prosecutor,  which  certainly  is  not  necessary  in  order  to  sustain 
the  indictment.  Under  our  laws  there  may  be  property  in  oysters 
growing  naturally  upon  the  land  of  another  person,  and  which  the 
owner  may  have  acquired  by  purchase.  In  regard  to  these,  it  would 
not  be  averred  that  they  had  ever  been  gatljered  or  been  under  the  con- 
trol of  the  owner  or  in  his  possession,  actual  or  constructive,  further  than 
inanimate  objects  are  in  the  possession  of  the  owner,  upon  the  princij)le 
that  property  in  personal  chattels  draws  after  it  the  possession.  The 
indictment  is  not  defective. 

The  more  material  question  in  the  cause  is  whether,  upon  the  case 
stated,  the  oysters  in  question  were  the  subject  of  larceny.  Was  the 
law  upon  this  point  correctly  stated  in  the  charge  to  the  jury?  The 
jury  were  instructed  that  if  the  same  oysters  which  were  planted  by 
Ilildreth  were  unlawfully  taken  by  the  defendant,  with  the  intent  to 
steal  them  ;  if  the  oysters  so  planted  could  be  easily  distinguished  from 
other  oysters  that  grew  in  the  sound  ;  if  they  were  planted  in  a  place 
where  oysters  did  not  naturally  grow ;  if  the  place  where  they  were 
planted  was  marked  and  identified,  so  that  the  defendant  and  others 
going  into  the  sound  for  clams  and  oysters  naturally  growing  there 
could  readily  know  that  these  oysters  were  planted  and  held  as  private 
property,  and  were  not  natural  oysters,  or  in  or  upon  a  natural  oyster 
bed,  then  the  oysters  were  the  subject  of  larceny,  and  the  defendant 
might  be  convicted.  But  if  the  jury  believed  that  the  oysters  were 
planted  in  or  upon  a  natural  bed,  they  should  be  considered  as  aban- 
doned to  the  public,  and  not  the  property  of  Hildreth ;  or,  if  the  jury 
believed  that  the  planted  oysters  were  not  marked  and  identified,  as 
before  stated,  the  defendant  should  be  acquitted. 

There  is  clearly  nothing  in  the  charge  that  conflicts  with  the  well- 
settled  law  of  the  State,  as  decided  in  Arnold  v.  Mundy,  1  Ilalst.  1, 
namely,  that  arms  of  the  sea,  including  both  the  waters  and  the  land 
under  the  waters,  for  the  purposes  of  navigation,  fishing,  and  all  other 
uses  of  the  water  and  its  products  are  common  to  all  the  people  of  the 
State.  Nor  is  there  anything  in  the  charge  in  conflict  with  the  princi- 
ples which  api)ear  to  have  been  adopted  by  the  court  in  the  earlier  case 
of  Shepard  and  Layton  v.  Leverson,  Penn.  391.  The  facts  in  evidence 
clearly  distinguish  the  present  case  from  that  of  Shepard  and  Layton  v. 
Leverson.  In  that  case  it  was  not  shown  that  the  oysters  taken  b}-  the 
defendant  were  the  identical  oysters  planted  b}'  the  plaintiff ;  nor  was 
there  any  mode  by  which  the  oysters  of  the  plaintiff  could  be  identified. 
Neither  of  those  difficulties  exists  in  the  present  case. 

The  oysters  in  question  had  once  been  the  propert}-  of  Hildreth.  The 
only  question  is,  whether  the  planting  of  these  oysters  in  a  public 
sound,  where  all  the  inhabitants  have  a  common  right  of  fishery,  was 
necessarily  an  abando7imefit,  or  a  return  of  the  property  to  the  common 


500  STATE   V.   TAYLOR.  [CHAP.  XIIL 

Stock.  There  was  clearl}'  no  intention  on  the  part  of  the  owner  to 
abandon  his  proj^erty  ;  on  the  contrary,  they  were  gathered  and  planted 
expressly  for  the  benefit  of  the  owner.  K  an  abandonment  is  to  be 
presumed,  it  will  be  a  legal  intendment  directly  against  the  truth  of  the 
case.  The  casting  of  property  into  the  sea,  with  the  intention  of  re- 
claiming it,  is  not  an  abandonment.  "  He,"  says  Domat,  "  who  finds 
a  thing  that  is  abandoned,  that  is,  of  which  he  who  was  master  of  it, 
quits  and  relinquishes  the  possession  and  property,  7iot  being  willing 
to  keep  it  any  longer,  becomes  master  of  it."  Domat's  Civ.  L. ,  part  1 , 
b.  3,  title  7,  §§  2,  9  (Am.  ed.  1850,  §  2154) ;  2  Bla.  Com.  9,  402. 

It  was  held  by  the  Chief  Justice,  in  the  case  of  Shepard  and  Layton 
V.  Leverson,  that  the  mere  act  of  throwing  the  03'sters  into  a  public 
river,  where  all  the  inhabitants  have  a  common  right  of  fishery,  was  of 
itself  an  abandonment  in  law,  on  the  ground  that,  where  the  subject  is 
put  without  the  power  of  the  owner,  where  it  is  thrown  into  the  com- 
mon stock,  from  which  it  cannot  be  distinguished,  there  can  be  no 
question  of  intent.  It  was  held  analogous  to  the  case  of  a  deer  taken 
in  a  forest,  and  turned  loose  again.  But  it  was  admitted  that  where 
the  act  relied  on  as  an  abandonment  is  in  itself  equivocal,  and  where 
the  identical  property  may  be  known  and  resumed  at  pleasure,  then  the 
intention  may  be  made  a  question.  Now  this  case  finds  that  the  oysters 
in  question  could  readily  be  identified  ;  that  no  oysters  grew  naturally 
where  they  were  planted,  and  that  the  spot  where  they  were  planted 
was  designated.  The  subject  of  the  propert}',  having  itself  no  power 
of  locomotion,  and  being  planted  where  no  other  oysters  naturally 
grew,  it  was  not  (as  in  the  case  of  the  deer  in  a  forest)  put  without  the 
power  of  the  owner,  nor  thrown  into  the  common  stock,  from  which  it 
could  not  be  distinguished. 

In  Fleet  v.  Hegeman,  14  Wend.  42,  it  was  held  by  the  Supreme 
Court  of  New  York  that  oysters  planted  b}^  an  individual  in  a  bed 
clearly  designated  in  a  bay  or  arm  of  the  sea,  which  is  a  common 
fishery,  are  the  propert}'  of  him  who  planted  them,  and  that,  for  taking 
them  away  by  another,  trespass  lies.  This  case  was  approved  in  Decker 
V.  Fisher,  4  Barb.  592,  and  its  authority  recognized  in  the  more  recent 
case  of  Brinekerhoff  v.  Starkins,  11  Barb.  248  ;  Angell  on  Tide  Waters, 
139.  These  authorities  clearly  sustain  the  instruction  given  to  the  jury 
in  the  present  case. 


SECT.  I.]  COMMONWEALTH   V.   SHAW.  501 


COMMONWEALTH   v.   SHAW. 
Supreme  Judicial  Coukt  of  Massachusetts.     18C2. 

[Reported  4  Allen,  308.] 

Indictment  for  larceny  of  several  hundred  "  cubic  feet  of  illuminat- 
ing gas,  each  cubic  foot  being  of  the  value  of  three  mills,  of  the 
property,  goods,  and  chattels  of  the  Boston  Gas  Light  Company." 

At  the  trial  in  the  Superior  Court,  before  Wilkinson,  J.,  it  appeared 
that  the  defendant  occupied  a  house  in  Ashland  Street  in  tlie  city  of 
Boston,  and  that  a  service  pipe  of  the  Boston  Gas  Light  Company  led 
from  their  main  pipe  in  that  street  to  within  a  short  distance  of  a  gas 
meter  owned  by  them  and  placed  under  the  front  steps  outside  of  the 
wall  of  the  house,  but  upon  the  premises  occupied  by  her,  and  the  de- 
fendant made  the  usual  connection  from  the  service  pipe  with  the  inside 
supply  pipe  by  short  pieces  of  lead  pipe  belonging  to  her,  through  which 
the  company  had  supplied  her  with  gas  ;  but,  upon  non-payment  of  the 
gas  rates,  the  company  removed  the  meter  and  shut  off  the  gas  by 
closing  a  stopcock  in  the  service  pipe,  upon  the  premises  occupied  by 
her,  and  gave  her  notice  thereof;  after  which  she,  without  the  consent 
or  knowledge  of  the  company,  and  to  avoid  paying  for  the  gas,  made  a 
connection  by  means  of  lead  pipe  between  the  service  pipe  and  the  pipe 
inside  of  the  house,  and  turned  the  cock  in  the  service  jjipe,  and  received 
and  consumed  gas  belonging  to  the  company.  There  was  no  question 
that  the  company'  was  legally  incorporated. 

The  defendant  requested  the  court  to  instruct  the  jury  that  no  con- 
viction could  be  had  under  this  evidence  ;  but  the  judge  instructed  the 
jury  that,  if  they  were  satisfied  that  the  defendant  took  the  gas  with  a 
felonious  intent,  she  was  guilty  of  larceny.  The  jury  returned  a  verdict 
of  guilty,  and  the  defendant  alleged  exceptions  to  this  ruling,  as  well  as 
to  an  order  of  the  judge  overruling  a  motion  in  arrest  of  judgment  on 
the  ground  that  the  indictment  was  insufficient  in  law. 

t/i  7^.  Pickering,  for  the  defendant. 

G.  P.  Sanger  (district  attorne}'),  for  the  Commonwealth. 

BiGELOw,  C.  J.  We  cannot  doubt  that  the  instructions  given  to  the 
jury  in  this  case  were  right.  There  is  nothing  in  the  nature  of  gas  used 
for  illuminating  purposes  which  renders  it  incapable  of  being  feloniously 
taken  and  carried  away.  It  is  a  valuable  article  of  merchandise,  bought 
and  sold  like  other  personal  propert}',  susceptible  of  being  severed  from 
a  mass  or  larger  quantit}^,  and  of  being  transported  from  place  to  place. 
In  the  present  case  it  appears  that  it  was  the  property  of  the  Boston 
Gas  Light  Company  ;  that  it  was  in  their  possession  by  being  con  fined 
in  conduits  and  tubes,  which  belonged  to  them,  and  that  the  defendant 
severed  a  portion  of  that  which  was  in  a  pipe  of  the  company  by  taking 
it  into  her  house  and  there  consuming  it.  All  this,  being  proved  to 
have  been  done  by  her  secretly,  and  with  an  intent  to  deprive  the  com- 


502  MULLALY  V.   PEOPLE.  [CHAP.  XIII. 

panj  of  their  property,  and  to  appropriate  it  to  her  own  use,  clearly 
constituted  the  crime  of  larceny. 

It  was  suggested  by  the  counsel  for  the  defendant  that,  if  she  was 
guilty  of  any  offence,  it  was  not  larceny,  but  embezzlement,  inasmuch 
as  it  appeared  that  the  gas  was  intrusted  to  her  possession  by  the  com- 
pany, and  that  at  the  time  of  the  alleged  felonious  taking  she  was  the 
bailee  thereof  But  the  facts  proved  entirely  negative  the  existence  oi 
any  such  relation  between  her  and  the  company.  The  gas  was  not  in 
her  possession.  On  the  contrary,  the  pipe  had  been  severed  from  the 
meter  by  closing  a  stopcock  in  the  service  pipe,  which  belonged  to  the 
company,  for  the  very  purpose  of  preventing  her  obtaining  possession 
of  it.  The  fact  that  the  end  of  the  pipe  was  on  the  premises  occupied 
by  her  is  wholly  immaterial.  It  was  not  placed  there  to  be  in  her  cus- 
tody or  control,  and  she  had  no  possession  of  it  or  its  contents.  The 
facts  proved  at  the  trial  are  similar  to  those  which  were  shown  to  exist 
in  the  case  of  Regina  v.  White,  6  Cox  C.  C.  213,  in  which  a  conviction 
of  the  defendant  for  the  larceny  of  gas  was  affirmed  by  the  court  of 
criminal  appeal.  That  case,  however,  was  not  so  strong  against  the 
defendant  as  the  present  one,  because  it  there  appeared  that  the  owners 
of  the  gas  had  not  caused  it  to  be  shut  off  from  the  premises  of  the 
defendant,  to  prevent  him  from  making  use  of  it. 

As  it  is  admitted  that  the  acts  charged  on  the  defendant  were  com- 
mitted prior  to  the  time  when  St.  1861,  c.  168,  took  effect,  its  provisions 
can  in  no  way  affect  the  present  case.^ 

SJxcejytions  overruled. 


MULLALY  V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1881. 

[Reported  86  Neiv  York,  365.] 

Error  to  the  General  Term  of  the  Supreme  Court,  in  the  first  judi- 
cial department,  entered  upon  an  order  made  May  20,  1881,  which 
affirmed  a  judgment  of  the  Court  of  General  Sessions  in  and  for  the 
county  of  New  York,  entered  upon  a  verdict  convicting  the  plaintiff  in 
error  of  the  crime  of  petit  larceny  in  stealing  a  dog.'^ 

Earl,  J.  The  prisoner  was  convicted  of  stealing  a  dog  of  less  value 
than  S25.  His  counsel  contended  at  the  trial  and  has  argued  before  us 
that  stealing  a  dog  is  not  larceny,  and  whether  it  is  or  not  is  the  sole 
question  for  our  present  determination. 

The  learned  opinion  pronounced  at  the  general  term  leaves  but  little 
to  be  written  now.  At  common  law  the  crime  of  larceny  could  not  be 
committed  by  feloniously  taking  and  carrying  away  a  dog.     Wharton's 

1  See  Ferens  v.  O'Brien,  11  Q.  B.  D.  21  (larceny  of  water).  —  Ed. 
8  Arguments  of  counsel  are  omitted. 


SECT.  I.]  MULLALY  V.   PEOPLE. 


503 


Cr.  Law  (4th  ed.),  §  1755;  4  Black.  Com.  235;  1  Hale's  Pleas  of  the 
Crown,  510;  Coke's  Third  Inst.  109.  And  yet  dogs  were  so  far  re- 
garded as  property  that  an  action  of  trover  could  be  brought  for  their 
conversion,  and  they  would  pass  as  assets  to  the  executor  or  adminis- 
trator of  a  deceased  owner.  Bacon's  Abr.,  Trover,  D. ;  1  Wras  on 
Plx'rs  (6th  Am.  ed.),  775. 

The  reason  generally  assigned  by  common-law  writers  for  this  rule  as 
to  stealing  dogs  is  the  baseness  of  their  nature,  and  the  fact  that  they 
were  kept  for  the  mere  whim  and  pleasure  of  their  owners.  When  we 
call  to  rr,;,i(^  the  small  spaniel  that  saved  the  life  of  William  of  Orange, 
and  tlius  probably  changed  the  current  of  modern  history  (2  Motley's 
Dutch  Republic,  398),  and  the  faithful  St.  Bernards,  which  after  a 
storm  has  swept  over  the  crests  and  sides  of  the  Alps  start  out  in  search 
of  lost  travellers,  the  claim  that  the  nature  of  a  dog  is  essentially  base, 
and  that  he  should  be  left  a  prey  to  ever}-  vagabond  who  chooses  to  steal 
him,  will  not  now  receive  ready  assent. 

In  nearly  every  household  in  the  land  can  be  found  chattels  kept  for 
the  mere  whim  and  pleasure  of  the  owner,  a  source  of  solace  after 
serious  labor,  exercising  a  refining  and  elevating  influence,  and  yet  they 
are  as  much  under  the  protection  of  the  law  as  chattels  purely  useful 
and  absolutely  essential. 

This  common-law  rule  was  extremely  technical,  and  can  scarcely  be 
said  to  have  had  a  sound  basis  to  rest  on.  While  it  was  not  larceny  to 
steal  a  dog,  it  was  larceny  to  steal  the  skin  of  a  dead  dog,  and  to  steal 
many  animals  of  less  account  than  dogs.  Lord  Coke,  in  his  Institutes, 
cited  above,  said:  "Of  some  things  that  he  ferce  natitrce,  being  re- 
claimed, felony  may  be  committed  in  respect  of  their  noble  and  generous 
nature  and  courage,  serving  ob  vitce  solatium  of  princes  and  of  noble 
and  generous  persons  to  make  them  fitter  for  great  employments,  as  all 
kinds  of  falcons  and  other  hawks,  if  the  party  that  steals  them  know 
they  be  reclaimed." 

In  the  reign  of  William  I.  it  was  made  grand  larceny  to  steal  a 
chattel  valued  at  twelve  pence  or  upwards,  and  grand  larceny  was  pun- 
ishable by  death,  and  one  reason  hinted  at  by  Lord  Coke  for  holding 
that  it  was  not  larceny  to  steal  dogs  was  that  it  was  not  fit  that  "  a  per° 
son  should  die  for  them  ;  "  and  yet  those  ancient  law-givers  thought  it 
not  unfit  that  a  person  should  die  for  stealing  a  tame  hawk  or  falcon. 

The  artificial  reasoning  upon  which  these  rules  were  based  is  wholly 
inapplicable  to  modern  society.  Tempora  mutantnr  et  leges  muta?i- 
titr  in  illis.  Large  amounts  of  money  are  now  invested  in  dogs,  and 
they  are  largely  the  subjects  of  trade  and  traffic.  In  many  ways  they 
are  put  to  useful  service,  and  so  far  as  pertains  to  their  ownership 
as  personal  property,  they  possess  all  the  attributes  of  other  personal 
property. 

If  the  common-law  rule  referred  to  ever  prevailed  in  this  State,  we 
have  no  doubt  it  has  been  changed  by  legislation.  It  is  provided  in 
2  R.  S.  690,  §  1,  tlrat  every  person  who  shall  be  convicted  of  stealing 


504  MULLALY   V.    PEOPLE.  [CHAP.  XIIL 

*'  the  personal  property  "  of  another,  of  the  value  of  $25  or  under, 
shall  be  adjudged  guilty  of  petit  larceny  ;  and  then,  on  page  703,  §  33, 
"personal  property,"  as  used  in  that  chapter,  is  defined  to  mean 
"  goods,  chattels,  eflfects,  evidences  of  rights  of  action,"  and  certain 
written  instruments.  This  definition  of  personal  property  is  certainly 
comprehensive  enough  to  include  dogs.  We  think  it  was  intended  to 
be  taken  literally,  and  that  the  law-makers  meant  to  make  it  the  crime 
of  larceny  to  steal  any  chattel  which  had  value  and  was  recognized  by 
the  law  as  property.  In  a  note  to  §  33  (3  R.  S.  837),  the  revisers 
say  that  ''  this  broad  and  comprehensive  definition  is  given  to  prevent 
the  enumeration  of  each  particular  instrument  or  article  that  may  be 
the  subject  of  larceny,  robbery,  embezzlement,  or  obtaining  property 
under  false  pretences.  The  ancient  idea  that  rights  in  action  were  not 
subjects  of  larceny  has  been  gradually  yielding  to  the  extension  of 
commerce,  the  increase  of  business,  and  the  necessities  of  mankind, 
until  at  last  we  have  begun  to  believe  that  anything  which  can  be 
stolen,  and  which  is  of  value  to  the  owner,  should  be  protected  by  the 
law."  At  the  same  time  a  system  for  the  taxation  of  dogs  was  enacted 
(1  R.  S.  704),  and  it  can  scarcely  be  supposed  that  the  legislature  meant 
to  regard  dogs  as  property  for  the  purpose  of  taxation  and  yet  leave 
them  without  protection  against  thieves. 

The  definition  of  personal  property  found  in  the  statute  is  not  to  be 
referred  to  the  common  law,  but  to  the  common  understanding  of  the 
time  when  the  statute  was  enacted. 

In  view,  therefore,  of  all  the  circumstances  to  which  we  have  alluded, 
and  for  all  the  reasons  stated,  we  are  of  opinion  that  the  law-makers 
intended,  by  the  legislation  contained  in  the  Revised  Statutes,  to  change 
the  common-law  rule  as  to  stealing  dogs,  if  it  was  before  recognized  as 
having  force  in  this  State ;  and  to  this  effect  are  the  only  judicial  de- 
cisions upon  this  subject  which  have  been  rendered  in  this  State,  so  far 
as  they  have  come  to  our  knowledge.  People  v.  Maloney,  1  Park.  Cr. 
593  ;  People  v.  Campbell,  4  id.  386  ;  see,  also,  People  ex  rel.  Longwell 
V.  McMaster,  10  Abb.  (N.  S.)  132. 

Our  attention  has  been  called  by  the  counsel  for  the  prisoner  to  cer- 
tain decisions  in  other  States,  which  tend  to  sustain  his  contention. 
Findlay  r.  Bear,  8  Serg.  &  Rawle,  671  ;  State  of  Ohio  v.  Lymus,  26 
Ohio  St.  400  ;  State  v.  Holder,  81  N.  C.  527 ;  Ward  v.  State,  48  Ala. 
161.  But  so  far  as  those  cases  announce  views  in  conflict  with  those 
above  expressed,  we  are  not  disposed  to  follow  them. 

We  conclude,  therefore,  that  the  conviction  was  right,  and  should  be 
aflSrmed. 

All  concur,  except  Folger,  C.  J.,  dissenting,  holding  that  the  com- 
mon law  does  not  recognize  a  dog  as  the  subject  of  larceny,  and  that 
the  Revised  Statutes,  in  its  definition  of  the  subjects  of  larceny,  do  not 
include  that  animal.  Judgment  affirmed.^ 

1  Ace.  Haywood  v.  State,  41  Ark.  479.  See  Hurley  v.  State,  30  Tex.  App. 
333.  — Ed. 


SECT.  II.]  REX   V.    WALSH.  505 


SECTION  II. 

Possession. 

(a)  The  Act  of  Assumino  PossEsaioir. 

REX  V.  WALSH. 
Crown  Case  Reserved.     1824. 

[Reported  1  Moody  C.  C.  14.] 

The  prisoner  was  tried  before  Thomas  Dcnman,  Esquire,  Common 
Serjeant,  at  the  Old  Bailey  Sessions,  January-,  1824,  on  an  indictment 
for  stealing  a  leathern  bag  containing  small  parcels,  the  property  of 
William  Ray,  the  guard  to  the  Exeter  mail. 

At  the  trial  it  appeared  that  the  bag  was  placed  in  the  front  boot, 
and  the  prisoner,  sitting  on  the  box,  took  hold  of  the  upper  end  of  the 
bag,  and  lifted  it  up  from  the  bottom  of  the  boot  on  which  it  rested. 
He  handed  the  upper  part  of  the  bag  to  a  person  who  stood  beside 
the  wheel  on  the  pavement,  and  both  had  hold  of  it  together,  endeavor- 
ing to  pull  it  out  of  the  boot,  with  a  common  intent  to  steal  it.  Before 
they  were  able  to  obtain  complete  possession  of  the  bag,  and  while 
they  were  so  engaged  in  trying  to  draw  it  out,  they  were  interrupted  by 
the  guard  and  dropped  the  bag. 

The  prisoner  was  found  guilt}',  but  the  facts  above  stated  were  spe- 
cially found  by  the  jury,  in  answer  to  questions  put  to  them  by  the 
Common  Serjeant. 

The  Common  Serjeant  entertaining  some  doubts  whether  the  prisoner 
could  be  truly  said  to  have  "  stolen,  taken,  and  carried  away  "  the  bag, 
he  respited  the  judgment,  in  order  that  the  opinion  of  the  judges  might 
be  taken  on  the  case. 

In  Easter  term,  1824,  the  judges  met  and  considered  this  case. 
They  held  the  conviction  right,  being  of  opinion  that  there  was  a 
complete  asportation  of  the  bag.^ 

1  Ace.  Rex  V.  Lapier,  2  East  P.  C.  557  ;  Harrison  v.  People,  50  N.  Y.  518 ;  State  r. 
Jones,  65  N.  C.  395  ;  State  v.  Craige,  89  N.  C.  475 ;  Eckels  v.  State,  20  Ohio  St  508  ; 
State  V.  Chambera,  22  W.  Va.  779.  —Ed. 


A 


7 


506  REGINA  V.   WHITE.  [CHAP.  XIII. 

REGINA  V.  WHITE. 
Crown  Case  Reserved.     1853. 

{Reported  6  Cox  C.  C.  213 ;  Dearsley  C.  C.  203.] 

The  prisoner  was  indicted  at  the  last  Quarter  Sessions  for  Berwick- 
upon-Tweed  for  stealing  5000  cubic  feet  of  carburetted  hydrogen  gas  of 
the  goods,  chattels,  and  property  of  Robert  Oswald  and  others.  Mr. 
Oswald  was  a  partner  in  the  Berwick  Gas  Company,  and  the  prisoner, 
a  householder  in  Berwick,  had  contracted  with  the  company  for  the 
supply-  of  his  house  with  gas  to  be  paid  for  by  meter.  The  meter, 
which  was  hired  by  the  prisoner  of  the  company,  was  connected  with 
an  entrance  pipe,  through  which  it  received  the  gas  from  the  companj-'s 
main  in  the  street,  and  an  exit  pipe  through  which  the  gas  was  con- 
veyed to  the  burners.  The  prisoner  had  the  control  of  the  stopcock  at 
the  meter,  by  which  the  gas  was  admitted  into  it  through  the  entrance 
pipe,  and  he  onl}'  paid  the  company  and  had  onl}-  to  pa}-  them  for  such 
quantity  of  gas  as  appeared  b}-  the  index  of  the  meter  to  have  passed 
through  it.  The  entrance  and  exit  pipes  were  the  propert}'  of  the 
prisoner.  The  prisoner,  to  avoid  paying  for  the  full  quantit}'  of  gas 
consumed,  and  without  the  consent  or  knowledge  of  the  company,  had 
caused  to  be  inserted  a  connecting  pipe  with  a  stopcock  upon  it  into 
the  entrance  and  exit  pipes  and  extending  between  them  ;  and  the 
entrance  pipe  being  charged  with  the  gas  of  tlie  company,  he  shut  the 
stop-cock  at  the  meter  so  that  gas  could  not  pass  into  it,  and  opened 
the  stop-cock  in  the  connecting  pipe,  when  a  portion  of  the  gas  as- 
cended through  the  connecting  pipe  into  the  exit  pipe  and  from  thence 
to  the  burners  and  was  consumed  there,  and  the  gas  continued  so  to 
ascend  and  be  consumed  until  by  shutting  the  stop-cock  in  the  con- 
necting pipe  the  suppl}*  was  cut  off.  This  operation  was  proved  to 
have  taken  place  at  the  time  specified  by  the  prosecutor.  It  was  con- 
tended for  the  prisoner  that  the  entrance  pipe  into  which  the  gas 
passed  from  the  main  being  the  propert}'  of  the  prisoner,  he  was  in 
lawful  possession  of  the  gas  by  the  consent  of  the  company  as  soon  as 
it  had  been  let  into  his  entrance  pipe  out  of  their  main,  and  that  his 
diverting  the  gas  in  its  course  to  the  meter  was  not  an  act  of  larceny. 
I  told  the  jury  that  if  they  were  of  opinion  on  the  evidence  that  the 
entrance  pipe  was  used  b}-  the  compan}'  for  the  conveyance  of  the  gas 
b}'  the  permission  of  the  prisoner,  but  that  he  had  not  by  his  contract 
an}-  interest  in  the  gas  or  right  of  control  over  it  until  it  passed  through 
the  meter,  his  property  in  the  pipe  was  no  answer  to  the  charge ;  that 
there  was  nothing  in  the  nature  of  gas  to  prevent  its  being  the  subject 
of  larceny  ;  and  that  the  stopcock  on  the  connecting  pipe  being  opened 
by  the  prisoner,  and  a  portion  of  the  gas  being  propelled  through  it  by 
the  necessary  action  of  the  atmosphere  and  consumed  at  the  burners, 
there  was  a  sufficient  severance  of  that  portion  from  the  volume  of  gas 


SECT.  II.]  REGINA   V.   WHITE.  507 

in  the  entrance  pipe  to  constitute  an  asportavit  by  the  prisoner ;  and 
tliat  if  the  gas  was  so  abstracted  with  a  fraudulent  intent  he  was  guilly 
of  larceny.  The  jury  answered  the  questions  put  to  them  in  the  aflir- 
mative  and  found  the  prisoner  guilty  ;  1  postponed  judgment,  taking 
recognizance  of  bail  according  to  the  statute  for  the  appearance  of  the 
prisoner  at  the  next  Sessions  to  receive  judgment  if  this  court  should 
be  of  opinion  that  he  was  rightly  convicted. 

Ballantine  for  the  prisoner.  The  prisoner  was  not  guilty  of  larceny, 
lie  received  the  gas  with  the  full  consent  of  the  company,  and  the 
evidence  only  shows  that  he  did  not  account  with  the  company  accord- 
ing to  his  contract.  The  prisoner  was  guilty  of  fraud  in  evading  the 
accounting  by  the  meter,  but  his  conduct  was  not  felonious. 

Loud  Campbell,  C.  J.  He  took  the  gas  from  the  company  against 
their  will  instead  of  receiving  it  properly  and  accounting  for  it. 

Ballantine.  The  Gas  Works  Clauses  Act,  10  Vict.  c.  15,  §  18,  pro- 
vides a  specific  penalty  for  this  very  offence,  which  would  hardly  have 
been  done  if  it  had  been  regarded  as  a  larcen}-. 

Maule,  J.  That  clause  may  be  intended  to  provide  against  frauds 
of  a  different  kind,  such  as  damaging  the  machinery  or  altering  the  in- 
dex of  the  meter,  which  would  not  be  larceny. 

Lord  Campbell,  C.  J.     Is  not  this  a  taking  invito  domino  ? 

Ballantine.  The  delivery  of  the  gas  is  voluntary  and  the  possession 
was  not  obtained  by  fraud. 

Maule,  J.  The  taking  was  by  turning  the  gas  into  a  new  channel 
without  the  leave  of  the  company  and  that  was  done  with  intent  to 
defraud. 

Ballantine.     There  was  no  trespass. 

Maule,  J.  If  this  gas  when  taken  was  in  the  lawful  possession  of 
the  prisoner  and  he  was  only  guilty  of  a  breach  of  contract  in  not 
accounting,  you  must  say  the  same  of  the  surreptitious  introduction  of 
new  burners. 

Ballantine.  An  evasion  of  the  meter  and  an  interference  with  it 
stand  on  the  same  ground.  The  meter  is  only  the  voucher  of  an  ac- 
count, and  if  there  is  a  delivery  according  to  contract  on  the  one  hand 
and  only  a  fraudulent  dealing  with  a  voucher  on  the  other,  there  is  no 
larceny. 

Loud  Campbell,  C.  J.  I  think  that  the  conviction  ought  to  be 
affirmed  and  that  the  direction  of  the  learned  recorder  was  most  accu- 
rate. Gas  is  not  less  a  subject  of  larceny  than  wine  or  oil ;  but  is  there 
here  a  felonious  asportation  ?  No  one  who  looks  at  the  facts  can  doubt 
it.  The  gas  no  doubt  is  supplied  to  a  vessel  which  is  the  property  of 
the  prisoner,  but  the  gas  was  still  in  the  possession  of  the  company. 
Then,  being  in  the  possession  of  the  company  and  their  property,  it  is 
taken  away  animo  furandi  by  the  prisoner.  If  the  property  remains 
in  the  company  until  it  has  passed  the  meter,  —  which  is  found,  —  to 
take  it  before  it  has  passed  the  meter  constitutes  an  asportation.  If 
the  asportation  was  with  a  fraudulent  intent  —  and  this  the  jury  also 


508  COMMONWEALTH   V.    BARRY.  [CHAP.  XIII. 

have  found  —  it  was  larceny.  As  to  the  Act  of  Parliament  the  legis- 
lature has  for  convenience  sake  added  a  specific  penalt}',  but  that  can- 
not reduce  the  offence  to  a  lower  degree.  My  brother  Maule  has, 
however,  given  a  probable  explanation  of  that  provision. 

Parke,  B.,  Maule,  J.,  Talfourd,  J.,  and  Martin,  B.,  concurred. 

Convictioti  affirmed. 


COMMONWEALTH  v.   BARRY. 

Supreme  Judicial  Court  of  Massachusetts.     1878. 

[Reported  125  Massachusetts,  390.] 

Indictment  for  larcenj'  of  a  trunk  and  its  contents. 

At  the  trial  in  the  Superior  Court,  before  Dewe}',  J.,  it  was  proved 
that  one  Kerr,  a  travelling  salesman  from  New  York,  had  caused  the 
trunk  in  question  to  be  checked  at  the  Union  Station  in  Worcester,  for 
Hartford,  Connecticut,  at  about  half-past  four  in  the  afternoon  of  May 
11,  and  had  himself  taken  a  train  leaving  at  that  time;  but,  as  there 
was  not  time  to  load  the  trunk,  it  was  retained  in  the  baggage  room  at 
Worcester  until  the  departure  of  the  express  train  leaving  Worcester 
for  Hartford  at  half-past  ten  at  night,  when  it  was  put  upon  the  cars, 
and  arrived  at  New  York  early  on  the  morning  of  May  12,  with  a  New 
York  check  upon  it;  that  one  Briggs  arrived  in  New  York  on  the 
same  train,  and  with  a  check  corresponding  with  the  check  on  the 
trunk,  obtained  the  trunk  and  took  it  to  a  hotel ;  that  the  trunk  was 
subsequently  sent  by  him  to  Baltimore,  where  it  was  afterwards  found 
by  its  owner,  rifled  of  its  contents ;  and  that  Briggs  was  convicted  in 
New  York  of  the  larceny  of  the  trunk  and  its  contents,  and  was 
sentenced  to  the  state  prison. 

There  was  also  evidence  tending  to  show  that  Briggs,  in  company 
with  the  defendant,  was  at  the  Union  Station  in  Worcester  on  the 
afternoon  and  evening  of  May  11  ;  that  Briggs  caused  a  valise  to  be 
checked  for  New  York,  which  was  placed  by  the  baggage  master  on 
the  trunk  in  question  ;  that  the  defendant,  according  to  a  preconcerted 
plan  between  him  and  Briggs,  got  over  the  counter  at  the  window  of 
the  baggage  room  where  baggage  is  checked,  without  permission,  and 
asked  the  baggage  master  to  permit  him  to  place  a  package  in  the 
valise,  showing  a  check  for  the  same;  that  he  was  permitted  to  do 
this,  and,  while  he  was  at  the  valise  and  trunk,  Briggs  called  the 
attention  of  the  baggage  master  to  the  window  by  a  question,  and  the 
defendant  changed  the  checks  on  the  valise  and  trunk,  and  at  once 
left  the  baggage  room  through  a  regular  exit.  This  was  all  the  evi- 
dence as  to  what  the  defendant  did  to  the  trunk  at  the  station. 

The  defendant  requested  the  judge  to  give  the  following  instructions  : 
"  1.  On  the  whole  evidence,  the  jury  would  not  be  warranted  in  finding 


SECT.  II.]  COM-VIONWEALTII   V.    BARRY.  509 

the  defendant  guilty.  2.  If  the  jury  find  that  all  that  the  defendant 
did  was,  according  to  a  preconcerted  plan  with  some  person,  to  change 
the  checks  on  the  trunk  and  valise,  and  that  the  asportation  of  the 
trunk  and  its  contents  was  done  by  some  other  person,  they  cannot 
convict  of  larceny.  3.  There  is  no  evidence  in  the  case  to  warrant  the 
jury  in  finding  that  the  defendant  did  anything  more  than  to  change  the 
checks  on  the  trunk  and  valise,  having  previously  arranged  with  some 
other  person  so  to  do.  4.  If  the  jury  find  tliat  the  defendant  arranged 
with  Brlggs  that  the  former  should  change  the  checks  on  the  trunk  and 
valise,  and  he  did  so  change  the  checks,  and  if,  in  pursuance  of  the 
plan,  Briggs  accompanied  the  trunk  on  the  same  train  to  New  York 
and  there  received  the  trunk  from  the  railroad  company  and  rifled  it  of 
its  contents,  and  there  is  no  evidence  which  satisfies  the  jury  that  the 
defendant  was  present  with  Briggs  in  New  York,  and  with  him  re- 
ceived the  trunk,  they  cannot  convict." 

The  judge  refused  to  give  these  instructions  ;  but  instructed  the  jury 
that  it  was  necessary  and  was  sufficient,  in  order  to  convict  the  de- 
fendant, that  they  should  be  satisfied  beyond  a  reasonable  doubt 
*'  that  the  defendant,  at  the  railroad  station  in  Worcester,  fraudulently 
and  feloniously  took  the  trunk  into  his  temporary  possession  and  con- 
trol, and  while  so  having  it  fraudulently,  with  the  intent  to  continue  to 
have  said  trunk  under  his  control,  and  appropriate  it  to  his  own  use  or 
the  use  of  himself  and  confederate,  fraudulently  and  feloniously  took 
off  the  Hartford  check  from  the  same,  which  the  railroad  company  had 
placed  on  it,  the  owner  having  a  corresponding  check,  and  placed 
thereon  a  check  of  the  company  for  New  York,  whereof  he  held 
a  corresponding  check  which  would  entitle  him  to  have  the  trunk 
transported  to  New  York,  and  to  receive  the  trunk  in  New  York  of 
the  company  on  its  arrival  there,  and  the  trunk  was  carried  to  New 
York  as  the  trunk  of  the  defendant,  or  of  which  he  was  entitled  to 
the  possession  and  control,  and,  by  reason  of  the  changed  check  there- 
on, the  trunk  with  its  contents  were,  on  its  arrival  at  New  York, 
delivered  to  the  defendant  or  to  some  person  for  him." 

The  jury  returned  a  verdict  of  guilty ;  and  the  defendant  alleged 
exceptions. 

W.  S.  B.  ITopkins,  for  the  defendant. 

C.  B.  Train^  Attorney  General,  for  the  Commonwealth. 

Lord,  J.  We  do  not  understand  that  the  presiding  justice  intended, 
by  the  language  used,  to  instruct  the  jury  that  the  temporary  pos- 
session referred  to  in  the  instructions  was,  in  itself,  an  asportation. 
It  does  not  appear  that  the  question  whether  there  was  an  asportation  at 
or  before  the  changing  of  the  checks  was  raised  at  the  trial,  or  that  the 
attention  of  the  court  was  called  to  that  subject.  An  asportation  at 
that  precise  time  was  unimportant.  The  real  question  was,  whether 
the  defendant  then,  feloniously  and  with  intent  to  steal,  set  in  motion 
an  innocent  agency,  by  which  the  trunk  and  contents  were  to  be 
removed  from  the   possession  of  the  true   owner,  and   put  into   the 


510  COMMONWEALTH   V.   BARRY.  [CHAP.  XIIL 

defendant's  possession,  and  b}'  means  of  such  agency  eflfected  the 
purpose ;  and  tlie  teniporaiy  possession  and  control,  to  which  the 
court  referred,  must  be  understood  to  mean  such  possession  and  con- 
trol as  enabled  the  defendant  to  execute  the  device  b}'  which,  through 
such  innocent  instrumentality,  he  should  become  possessed  of  the 
property. 

There  was  evidence  tending  to  show  that  the  defendant  and  Briggs 
were  acting  in  pursuance  of  a  common  purpose,  and  that  the  acts  of 
each  were  the  acts  of  both ;  and,  inasmuch  as  no  question  was  raised 
upon  this  subject,  it  is  taken  to  be  true  that  what  one  did  was  the  act 
of  both,  and  that  the  subsequent  actual  possession  of  the  trunk  by 
Briggs  was  the  possession  of  the  defendant.  It  will  be  seen,  therefore, 
that,  by  the  instructions  of  the  presiding  judge,  the  jurj-  were  author- 
ized to  find  the  defendant  guilty  of  larcen}-,  if,  in  the  mode  stated,  he 
or  his  confederate  in  action  obtained  possession  of  the  trunk  and  its 
contents. 

This,  as  we  understand,  has  been  the  law  from  the  earliest  period : 
*'  There  is  no  occasion  that  the  carrying  away  be  by  the  hand  of  the 
party   accused,    for   if  he   procured   an   innocent   agent   to   take   the 
property,"  by  means  of  which  he  became  possessed  of  it,  "  he  will 
himself  be  a  principal  offender."     3  Chit.  Crim.  Law,  925.     It  is  held 
to  be  a  larceny  "  if  a  person,  intending  to  steal  my  horse,  take  out  a 
replevin,  and  thereby  have  the  horse  delivered  to  him  by  the  sheriff 
or  if  one  intending  to  rifle  my  goods  get  possession  from  the  sheriff, 
by  virtue  of  a  judgment  obtained  without  any  the  least  color  or  title 
upon  false  affidavits,  &c. ;  in  which  cases,  the  making  use  of  legal  prO' 
cess  is  so  far  from  extenuating  that  it  highly  aggravates  the  offence 
by  the  abuse  put  on  the  law  in  making  it  serve  the  purposes  of  op 
pression  and  injustice."     1  Hawk.   c.  33,  §  12.     1   Hale  P.  C.  507 
Chissers'  case,  T.  Raym.  275.     AVilkins'  case,  cited  in  1  Hawk.  c.  33 
§  22  ;  s.  c.  1  Leach  (4th  ed.)  520.     It  will  thus  be  seen  that  an  aspor- 
tation may  be  effected  by  means  of  innocent  human  agenc}',  as  well  as 
by  mechanical  agency,  or  by  the  offender's  own  hand. 

The  case  has  been  argued  as  if  it  was  intended  b}-  the  presiding 
justice  to  rule  that  the  jury  must  find  that,  at  the  instant  of  the 
exchange  of  the  checks,  there  was  such  an  actual  manual  change  in  the 
possession  as  of  itself  to  be  an  asportation.  We  do  not  so  understand 
the  instruction.  An  asportation  at  that  time  was  unimportant.  The 
real  question  was,  whether  the  defendant  at  that  time  feloniously  and 
with  intent  to  steal,  set  in  motion  an  innocent  agency,  by  which  the 
trunk  and  contents  were  to  be  removed  from  the  possession  of  the 
true  owner,  and  put  into  the  defendant's  possession,  and  whether  such 
purpose  was  actually  accomplished.  If,  before  the  trunk  had  been 
started,  the  scheme  had  been  detected,  the  offence  of  the  defendant 
would  have  been  an  attempt  to  commit  larceny,  and  doing  an  act 
towards  the  commission  of  it,  but  failing  in  the  perpetration  ;  but,  as 
Boon  as  the  asportation  was  complete,  for  however  short  a  distance, 


SECT.  II.]  EDMONDS   V.   STATE.  511 

the  offence  of  larceny  was  coinniitted,  such  asportation  having  been 
caused  by  hin),  by  fraudulent  means,  and  through  an  innocent  agent, 
unconscious  of  what,  in  fact,  he  was  doing.  As  soon  as  the  trunk  was 
placed  on  board  the  cars,  checked,  with  the  corresponding  clieck  in  the 
possession  of  the  defendant  or  his  confederate,  the  trunk  and  its 
contents  were  in  the  possession  and  control  of  the  defendant  or  his  con- 
federate, and  it  is  immaterial  of  which.  Nor  is  the  time  wiien  the 
actual  manual  possession  came  into  tlie  hands  of  the  parties  important, 
they  having  all  the  time  the  constructive  possession  and  the  real  con- 
trol of  it. 

The  instructions  prayed  for  by  the  defendant's  counsel  were  properly 
refused,  because  they  wholly  omitted  all  reference  to  the  purpose  and 
intent  of  the  defendant  in  what  he  ditl,  and  all  reference  to  the  fact 
that  the  defendant  was  an  accomplice  of  Briggs,  or  that  the  actual  sub- 
sequent possession  by  Briggs  was,  or  might  be,  the  possession  of  the 
defendant.  The  request  to  instruct  the  jury  that,  upon  the  whole  evi- 
dence, they  would  not  be  warranted  in  finding  the  defendant  guilty, 
was  also  properly  refused.  Exceptions  overruled. 


EDMONDS  V.  STATE. 
Supreme  Court  of  Alabama.     1881. 

[Reported  70  Alabama,  8.] 

SoMERViLLE,  J.  The  indictment  in  this  case  charges  the  defendant 
with  the  larceny  of  a  hog,  which,  under  the  statute,  is  made  a  felony, 
without  reference  to  the  value  of  the  animal  stolen.  Code,  1876,  §  4358. 
The  onh'  evidence  in  the  case,  showing  anj-  caption,  or  asportation  of  the 
animal,  was  the  testimony  of  an  accomplice,  one  Wadworth,  who  made 
the  following  statement :  "That  shortly  after  dark,  on  the  18th  of  Febru- 
ary last,  witness  met  defendant  near  the  horse-lot,  on  the  plantation 
of  one  Ilges ;  that  the  two  went  together  to  witness'  house,  where  the 
latter  procured  an  axe,  and  they  then  returned  to  the  lot.  Witness 
then  got  some  corn,  and  after  giving  defendant  the  axe,  by  dropping 
some  of  the  corn  on  the  ground  tolled  the  hog  to  the  distance  of  about 
twenty  yards  ;  that  the  defendant  then  struck  the  hog  with  the  axe, 
and  the  hog  squealed,  whereupon  immediately  both  witness  and  defen- 
dant ran  away,  leaving  the  hog  where  it  was."  Upon  this  state  of 
facts,  the  court  charged  the  jury  that  if  they  believed  the  evidence,  it 
was  sufficient  to  show  such  a  taking  and  carrying  away  of  the  property, 
if  done  feloniously,  as  was  necessar}'  to  make  out  the  offence  of  larceny. 

We  think  the  court  erred  in  giving  this  charge,  though  the  question 
presented  is  not  free  from  some  degree  of  doubt  and  diffioiilty.  The 
usual  definition  of  larceny  is,  "  the  felonious  taking  and  carr}  ing  away 


512  EDMONDS   V.   STATE.  [CHAP.  XIII. 

of  the  personal  goods  of  another."  4  Black.  Com.  229.  It  is  defined 
in  Roscoe's  Criminal  Evidence,  as  "  the  wrongful  taking  possession  of 
the  goods  of  another,  with  intent  to  deprive  the  owner  of  his  propert}'  in 
them."  Rose.  Cr.  Ev.  622.  It  is  a  well  settled  rule,  liable  to  some  few  ex- 
ceptions, perhaps,  that  every  larceny  necessarily  involves  a  trespass,  and 
that  there  can  be  no  trespass,  unless  there  is  an  actual  or  constructive 
taking  of  possession  ;  and  this  possession  must  be  entire  and  absolute. 
Roscoe's  Cr.  Ev.  623-24 ;  3  Greenl.  Ev.  §  154.  There  must  not  only 
be  such  a  caption  as  to  constitute  possession  of,  or  dominion  over  the 
property',  for  an  appreciable  moment  of  time,  but  also  an  asportation, 
or  carrying  awaj-,  which  ma}'  be  accomplished  b}'  any  removal  of  the 
property  or  goods  from  their  original  status,  such  as  would  constitute 
a  complete  severance  from  the  possession  of  the  owner.  1  Greenl.  Ev, 
§  154  ;  Roscoe's  Cr.  Ev.  p.  625.  It  has  been  frequently  held  that  to 
I  chase  and  shoot  an  animal,  with  felonious  intent,  without  removing  it 
/   after  being  shot,  would  not  be  such  a  caption  and  asportation  as  to  con- 

•  summate  the  offence  of  larcen}-.     Wolf -y.  The  State,  41  Ala.  412  ;  The 

*  State  V.  Seagler,  1  Rich.  (S.  C.)  30 ;  2  Bish.  Cr.  Law,  §  797.  So  it 
has  been  decided  that  the  mere  upsetting  of  a  barrel  of  turpentine, 
though  done  with  felonious  intent,  does  not  complete  the  offence,  for 
the  same  reason.  The  State  v.  Jones,  65  N.  C.  395.  The  books  are 
full  of  cases  presenting  similar  illustrations. 

On  the  contrary,  it  is  equally  well  settled  that  where  a  person  takes 
an  animal  into  an  inclosure,  with  intent  to  steal  it,  and  is  apprehended 
before  he  can  get  it  out,  he  is  guilty  of  larceny.  3  Inst.  109.  In  Wis- 
dom's case,  8  Port.  507,  519,  it  was  said,  arguendo,  by  Mr.  Justice 
Goldthwaite,  "  If  one  entice  a  horse,  hog,  or  other  animal,  by  placing 
food  in  such  a  situation  as  to  operate  on  the  volition  of  the  animal, 
and  he  assumes  the  dominion  over  it,  and  has  it  once  under  his  control, 
the  deed  is  complete ;  but,  if  we  suppose  him  detected  before  he  has 
the  animal  under  his  control,  yet  after  he  has  operated  on  its  volition, 
the  offence  would  not  be  consummated."  This  principle  is,  no  doubt, 
a  correct  one  ;  but  the  true  difficulty  hes  in  its  proper  application.  It 
is  clear,  for  example,  if  one  should  thus  entice  an  animal  from  the 
possession,  actual  or  constructive,  of  the  owner,  and  toll  it  into  his 
own  inclosure,  closing  a  gate  behind  him,  the  custody  or  dominion 
acquired  over  the  animal  might  be  regarded  as  so  complete  as  to  consti- 
•  tute  larceny.  2  Bish.  Cr.  Law,  §  806.  It  is  equally  manifest  that,  if 
one  should,  in  like  manner,  entice  an  animal,  even  for  a  considerable 
distance,  and  it  should,  from  indocility,  or  other  reason,  follow  him  so 
far  off  as  not  to  come  virtually  into  his  custody,  the  crime  would  be 
incomplete. 

The  controlling  principle,  in  such  cases,  would  seem  to  be  that  the 
possession  of  the  owner  must  be  so  far  changed  as  that  the  dominion 
of  the  trespasser  shall  be  complete.  His  proximity  to  the  intended 
booty  must  be  such  as  to  enable  him  to  assert  this  dominion,  by  taking 
actual  control  or  custody  by  manucaption,   if  he   so   wills.      If  he 


SECT.  II.]  THOMPSON   V.   STATE.  513 

abandon  the  enterprise,  however,  before  being  placed  in  this  attitude, 
he  is  not  guilt}'  of  the  offence  of  larceny,  though  he  may  be  convicted 
of  an  attempt  to  commit  it.  Wolfs  case,  41  Ala.  412.  It  would  seem 
there  can  be  no  asportation,  within  the  legal  acceptation  of  the  word, 
■without  a  previousl}"  acquired  dominion. 

The  facts  of  tliis  case,  taken  alone,  do  not  constitute  larcen}'.  It  is 
not  a  reasonable  inference  from  them  that  there  was  such  a  complete 
caption  and  asportation  as  to  consummate  the  offence.^ 

The  jialgme7it  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded. 


THOMPSON  V.  STATE. 
Supreme  Court  of  Alabama. 

[Reported  94  Alabama,  535.] 

Walker,  J.  The  witness  for  the  State  testified  that  he  held  out  his 
open  hand  with  two  silver  dollars  therein,  showing  the  money  to  the 
defendant ;  that  the  defendant  struck  witness'  hand,  and  the  money  was 
either  knocked  out  of  his  hand  or  was  taken  by  the  defendant,  he  could 
not  tell  positively  which.  It  was  after  twelve  o'clock  at  night,  and  the 
■witness  did  not  see  the  money,  either  in  defendant's  possession  or  on 
the  ground.  The  court  charged  the  jury :  "  If  the  jury  find  from  the 
evidence  that  the  defendant,  with  a  felonious  intent,  grabbed  for  the 
money,  but  did  not  get  it,  but  only  knocked  it  from  the  owner's  hand 
with  a  felonious  intent,  this  would  be  a  sufficient  carrying  away  of  the 
money,  although  defendant  never  got  possession  at  any  time  of  said 
money."  This  charge  was  erroneous.  To  constitute  larcen}-,  there 
must  be  a  felonious  taking  and  carrying  away  of  personal  property. 
There  must  be  such  a  caption  that  the  accused  acquires  dominion  over 
the  property,  followed  b}-  such  an  asportation  or  carrying  awa}'  as  to 
supersede  the  possession  of  the  owner  for  an  appreciable  period  of 
time.  Though  the  owner's  possession  is  disturbed,  yet  the  offence  is 
not  complete  if  the  accused  fails  to  acquire  such  dominion  over  the 
propert}'  as  to  enable  him  to  take  actual  custody  or  control.  Frazior 
V.  The  State,  85  Ala.  17;  Groom  v.  The  State,  71  Ala.  14;  Edmunds 
V.  The  State,  70  Ala.  8  ;  Wolf  v.  The  State,  41  Ala.  412.  It  is  not 
enough  that  the  money  was  knocked  out  of  the  owner's  hand,  if  it  fell 
to  the  ground  and  the  defendant  never  got  possession  of  it.  The  defen- 
dant was  not  guilty  of  larceny  if  he  did  not  get  the  money  under  his 
control.  If  the  attempt  merel}-  caused  the  mone}-  to  fall  from  the 
owner's  hand  to  the  ground,  and  the  defendant  ran  oflT  without  getting 

1  Aec.  Hardeman  v.  State,  12  Tex.  App.  207.  See  Croom  v.  State,  71  A\&  1  l  . 
Lundy  v.  State,  60  Gn.  143  ;  State  v.  Alexander,  74  N.  C.  232  —  Ed. 

38 


514  ANONYMOUS.  [CHAP.  XIII. 

it,  the  larceny  was  not  consummated,  as  the  dominion  of  the  trespasser 
was  not  complete.  Charge  No.  1  was  a  proper  statement  of  the  law  as 
applicable  to  the  evidence  above  referred  to,  and  it  should  have  been 
given. ^  Reversed  and  remanded. 


SECTION  II.   (continued), 
(b)  Distinction  between  Possession  and  Custodt. 

Littleton,  Tenures,  Sect.  71.  If  I  lend  to  one  my  sheep  to  tathe  his 
land,  or  my  oxen  to  plow  the  land,  and  he  killeth  my  cattle,  I  may  well 
have  an  action  of  trespass  against  him,  notwithstanding  the  lending. 

Coke,  First  Institute,  ad  loc.  And  the  reason  is,  that  when  the 
bailee,  having  but  a  bare  use  of  them,  taketh  upon  him  as  an  owner  to 
kill  them,  he  loseth  the  benefit  of  the  use  of  them.  Or  in  these  cases 
he  may  have  an  action  of  trespass  sicr  le  case  for  this  conversion,  at 
his  election. 


ANONYMOUS. 

Assizes.     1353. 

[Reported  Liber  Assisarum,  137,  pL  39.] 

One  a.  was  arraigned  with  the  mainor,  sc.  a  coverlet  and  two  sheets  ; 
and  he  put  himself  on  his  clergy.  And  it  was  found  by  the  inquest  that 
he  was  a  guest  at  the  house  of  a  man  of  note,  and  was  lodged  within 
these  bedclothes  ;  and  it  was  found  that  he  got  up  before  day,  and  took 
these  bedclothes  out  of  the  chamber,  and  carried  them  into  the  hall, 
and  went  off  to  the  stable  to  find  his  horse ;  and  his  host  summoned 
his  household  against  him.  And  it  was  asked  of  the  inquest  whether 
he  carried  the  bedclothes  into  the  hall  with  intent  to  have  stolen  them ; 
and  they  said  yes.  Wherefore  he  was  adjudged  a  felon,  and  was 
delivered  to  the  ordinary,  because  he  was  a  clerk,  etc.^ 

»  Ace.  Rex  V.  Farrel,  2  East  P.  C.  557  ;  Com.  v.  Luckis,  99  Mass.  431.  See  People 
V.  Meyer,  75  Cal.  383.  —  Ed. 

2  After  reporting  this  case,  Staunforde  (Pleas  of  the  Crown,  26)  adds  :  "  And  yet 
the  thing  stolen  seems  never  to  have  been  out  of  the  owner's  possession,  for  it  had  not 
passed  out  of  the  house ;  so  qunre  what  the  law  would  be  in  such  a  case  at  this  day. 
For  no  wonder  it  was  allowed  for  law  at  this  time,  sc,  regnante  Edwardo  tertio,  quia 
tunc  temporis  voluntas  reputabatur  pro  facto,  ^c."  See  ace.  State  v.  Wilson,  Coxe  (N.  J.), 
439.  — Ed. 


SECT.  II.]  REX   V.   CIIISSERS.  515 


ANONYMOUS. 
Old  Bailey.     1664. 

[Reported  Keli/nij,  35.] 

A  SILK  throster  bad  men  come  to  work  in  liis  own  house,  and  deliv- 
ered silk  to  one  of  them  to  work,  and  the  workmen  stole  away  part  of 
it.  It  was  agreed  by  Hyde,  Chief  Justice,  u)ysolf  and  Brother  Wylde 
being  there,  that  this  was  felony,  notwithstanding  the  delivery  of  i't  to 
the  party,  for  it  was  delivered  to  him  only  to  work,  and  so  the  entire 
property  remained  only  in  the  owner,  like  the  case  of  a  butler  who  hath 
plate  delivered  to  him ;  or  a  shepherd,  who  hath  sheep  delivered,  and 
they  steal  any  of  them,  that  is  felony  at  the  common  law.  Vid.  13 
Eliz.  4,  10  ;  3  H.  VII.,  12  ;  21  H.  VII.,  14  ;  Accord  Poulton  de  Pace, 
126.1 


REX  V.   CHISSERS. 
Exchequer.     1678. 

[Reported  T.  Raymond,  275] 

Upon  a  special  verdict  the  jury  find  that,  on  the  day  and  at  the  place 
in  the  indictment  mentioned,  Abraham  Chissers  came  to  the  shop  of 
Anne  Charteris,  spinster,  in  the  said  indictment  likewise  named,  and 
asked  for  to  see  two  cravats  in  the  indictment  mentioned,  which  she 
shewed  to  him,  and  delivered  them  into  his  hands,  and  thereupon  he 
asked  the  price  of  them,  to  which  she  answered  75.  ;  whereupon  the 
said  Abraham  Chissers  offered  her  35.,  and  immediately  run  out  of  the 
said  shop,  and  took  away  the  said  goods  openly  in  her  sight ;  but 
whether  this  be  felony  or  not  is  the  question.  And  if  it  shall  be  ad- 
judged felony,  we  find  him  guilt}-,  and  that  the  goods  were  of  the  value 
of  7s.,  and  that  he  had  no  goods  or  chattels,  etc. ;  but  if  it  be  not 
adjudged  felony,  we  find  him  not  guilt}-,  nor  that  he  fled  for  the  same. 

And  I  am  [of]  opinion  that  this  act  of  Chissers  is  felony  ;  for  that, 
1.  he  shall  be  said  to  have  taken  these  goods, /(?Z^eo  animo  ;  for  the  act 
subsequent,  namely,  his  running  away  with  them,  explains  his  intern 
precedent;  as  the  suing  a  replevin  to  get  the  horse  of  another  man.  to 
which  he  hath  no  title,  is  felony,  because  in  fmudem  legis,  Co.  3  Inst. 
108.  So  if  an  officer  cometh  to  a  man,  and  telleth  him  that  he  is  out- 
lawed, when  the  officer  knoweth  the  contrary  to  be  true,  and  by  color 
thereof,  takes  his  goods,  it  is  felony :  Dalton's  Office  of  Sheriffs,  cap. 

»  See  ace.  U.  S.  v.  Clew,  4  Wash.  C.  C.  700 ;  Marcns  v.  State,  26  Ind.  101  ;  Gill  r. 
Bright,  6  T.  B.  Mon.  130;  State  v.  Jarvis,  63  N.  C.  556;  State  v.  Self,  1  Bay. 
242.  —Ed. 


516  KEGINA  V.   SLOWLY.  [CHAP.  XIIL 

121,  fol.  489.  And  the  case  of  one  Far,  in  which  I  m3'self  was  a  coun- 
sel, was  thus :  Far,  knowiug  one  Mrs.  Steneer,  Uving  in  St.  Martin's 
Lane,  in  Middlesex,  to  have  considerable  quantity  of  goods  in  her 
house,  procured  an  affidavit  to  be  filed  in  the  Common  Pleas  of  the  due 
delivery  of  a  declaration,  in  an  action  of  ejectione  Jirmce,  in  which  he 
was  lessor,  though  he  had  no  title,  and  thereupon  got  judgment,  and 
took  out  an  habere  facias  2^ossessione7n  for  the  house,  directed  to  the 
sheriff  of  Middlesex,  and  procured  him  to  make  a  warrant  to  a  bailiff 
to  execute  the  writ,  who  with  Far  came  to  the  house,  turned  Mrs. 
Steneer  out  of  possession  thereof,  and  seized  upon  the  goods,  of  a  great 
value,  and  converted  them  to  his  own  use,  and  upon  complaint  made  by 
Mrs.  Steneer  to  Sir  Robert  Hyde,  then  Lord  Chief  Justice  of  B.  R.,  Far 
was  apprehended  by  his  warrant,  and  indicted  at  Justice  Hall  in  the 
Old  Bailey,  and  found  guilty,  and  hanged  ;  for  that  he  used  the  color  of 
an  action  of  ejectment  and  the  process  thereupon  to  execute  his  feloni- 
ous intent,  infraudetnlegis. 

2.  Although  these  goods  were  delivered  to  Chissers  b}'  the  owner,  yet 
the}'  were  not  out  of  her  possession  by  such  deliver}',  till  the  property 
should  be  altered  by  the  perfection  of  the  contract,  which  was  but  in- 
choated and  never  perfected  between  the  parties ;  and  when  Chissers 
run  away  with  the  goods,  it  was  as  if  he  had  taken  them  up,  lying  in 
the  shop,  and  run  away  with  them.     Vide  Hill.  21  H.  VII.  14  pi.  21.^ 


REGINA  V.   SLOWLY. 
Crown  Case  Reserved.     1873. 

[Reported  12  Cox  C.  C.  269.] 

Case  reserved  for  the  opinion  of  this  court  by  Mr.  Justice  Byles. 

The  prisoners,  at  the  last  Winter  Assizes  for  the  county  of  Sussex, 
at  Lewes,  were  jointly  indicted  for  stealing  onions. 

The  prosecutor,  having  a  cart  loaded  with  onions,  met  the  prisoners, 
who  agreed  to  bu}'  all  the  onions  at  a  certain  price,  namely,  £3  165.  for 
ready  monej',  the  prisoners  saying,  "You  shall  have  3'our  mone}' 
directly  the  onions  are  unloaded." 

The  onions  were  accordingly  unloaded  by  the  prosecutor  and  the 
prisoners  together,  at  a  place  indicated  b}-  the  prisoners. 

The  prosecutor  then  asked  for  his  mone}-.  The  prisoners  thereupon 
asked  for  a  bill,  and  the  prosecutor  made  out  a  bill  accordingl}'.  One 
of  the  prisoners  said  the}'  must  have  a  receipt  from  the  prosecutor,  and 
in  the  presence  of  the  other  made  a  cross  upon  the  bill,  put  a  one  penny 
postage  stamp  on  it,  and  then  said  the}'  had  a  receipt,  and  refused  to 
restore  the  onions  or  pay  the  price. 

1  See  Bassett  v.  Spofford,  45  N.  Y.  387.  —  Ed. 


SECT.  II.]  REGINA   V.    SLOWLY.  517 

The  next  morning  the  prisoners  oirered  the  onions  for  sale  at 
Hastings. 

The  jury  convicted  both  the  prisoners  of  larceny,  and  said  they 
found  that  the  prisoners  never  intended  to  pay  for  the  onions,  and  that 
the  fraud  was  meditated  by  both  the  prisoners  from  the  beginning. 
The  prisoners'  counsel  insisting  that  under  these  circumstances  tliere 
was  no  larceny,  I  reserved  the  point  for  the  decision  of  the  Court  of 
Criminal  Appeal. 

(Signed)  J.  Baknakd   Byles. 

Willouffhbi/,  for  the  prisoners.  The  prisoners  were  not  properly 
convicted  of  larceny,  for  the  prosecutor  gave  credit  to  the  prisoners  for 
the  £3  16s.,  and  delivered  the  onions  to  them  on  such  credit.  [Kelly, 
C.  B.  What  credit  was  given?  The  case  is  like  Reg.  v.  McGrath  (39 
L.  J.  7,  M.  C. ;  1 1  Cox  C.  C.  347).]  This  is  a  diirerent  case.  There  the 
money  was  obtained  against  the  will  of  the  owner.  Here  the  onions 
were  unloaded  by  the  prosecutor.  Moreover,  it  was  proved,  though 
not  stated  in  the  case,  that  the  prosecutor  called  on  the  prisoners  in 
the  evening  for  the  money. 

The  learned  counsel  then  cited  2  East  P.  C.  669  (edit.  a.d.  1805), 
and  the  cases  of  Rex  v.  Harvey  and  Reg.  v.  Nicholson,  there  cited. 
Also  Rex  V.  Oliver,  2  Leach,  1072  ;  R.  v.  Adams,  2  Rus.  on  Crimes, 
209  ;  Tooke  v.  Hollingsworth,  5  T.  R.  231  (Buller,  J.)  ;  Reg.  v.  Small, 
8  C.  &  P.  46  ;  Reg.  v.  Stewart,  1  Cox  C.  C.  174 ;  Reg.  v.  McKale,  37 
L.  J.  97,  M.  C.  ;  11  Cox  C.  C.  32. 

Focock,  for  the  prosecution,  was  not  called  upon  to  argue. 

Kelly,  C.  B.  I  am  of  opinion  that  the  conviction  should  be  affirmed. 
If  in  this  case  it  had  been  intended  by  the  prosecutor  to  give  credit  for 
the  price  of  the  onions,  even  for  a  single  hour,  it  would  not  have  been 
larceny ;  but  it  is  clear  that  no  credit  was  given  or  ever  intended  to 
be  given.  Any  idea  of  that  is  negatived  by  the  statement  in  the  case 
that  the  prisoners  agreed  to  buy  for  ready  money.  In  all  such  sales 
the  delivery  of  the  thing  sold,  or  of  the  money,  the  price  of  the  thing 
sold,  must  take  place  before  the  other ;  i.  e.,  the  seller  delivers  the 
thing  with  one  hand  while  he  receives  the  money  with  the  other.  No 
matter  which  takes  place  first,  the  transaction  is  not  complete  until 
both  have  taken  place.  If  the  seller  delivers  first  before  the  money 
is  paid,  and  the  buyer  fraudulently  runs  off  with  the  article,  or  if,  on 
the  other  hand,  the  buyer  pays  first,  and  the  seller  fraudulently  runs 
off  with  the  money  without  delivering  the  thing  sold,  it  is  equally 
larceny'. 

Mellor,  J.  I  am  of  the  same  opinion.  The  prisoners  obtained 
possession  of  the  onions  by  a  trick,  and  never  intended  to  pay  for 
them,  as  the  jury  found.  From  the  very  first  they  meditated  the  fraud 
to  get  possession  of  them,  which  puts  an  end  to  any  question  of  its 
being  larceny  or  not. 

PiGOTT,  B.     The  facts   are  that  the  prosecutor  never  intended  to 


518  COMMONWEALTH   V.    O'MALLEY.  [cHAP.  XIIL 

part  with  the  possession  of  the  onions  except  for  ready  money.  He 
did  part  with  the  possession  to  the  prisoners,  who  obtained  the  posses- 
sion by  fraud.  The  prisoners  then  brought  in  aid  force  to  keep  pos- 
session, and  refused  to  restore  the  onions  or  pay  the  price.  Therefore 
the  possession  was  obtained  against  the  will  of  the  prosecutor. 
Denman,  J.,  and  Pollock,  B.,  concurred.^ 

Conviction  affirmed. 


COMMONWEALTH  v.   O'MALLEY. 

Supreme  Judicial  Court  of  Massachusetts.     1867. 

[Reported  97  Massachusetts,  584.] 

Hoar,  J.^  We  are  of  opinion  that  there  was  no  evidence  to  sustain 
the  indictment  for  embezzlement,  and  that  the  conviction  was  wrong. 
The  defendant  had  been  previously  acquitted  of  larceny  upon  proof  of 
the  same  facts ;  and  it  is  therefore  of  great  importance  to  him,  if  the 
offence  committed,  if  an}',  was  larcenj-,  that  it  should  be  so  charged. 

To  constitute  the  crime  of  embezzlement,  the  property  which  the 
defendant  is  accused  of  fraudulently  and  feloniously  converting  to  his 
own  use,  must  be  shown  to  have  been  entrusted  to  him,  so  that  it  was 
in  his  possession,  and  not  in  the  possession  of  the  owner.  But  the 
facts  reported  in  the  bill  of  exceptions  do  not  show  that  the  possession 
of  the  owner  of  the  mone}'  was  ever  divested.  She  allowed  the  de- 
fendant to  take  it  for  the  purpose  of  counting  it  in  her  presence,  and 
taking  from  it  a  dollar,  which  she  consented  to  lend  him.  The  money 
is  alleged  to  have  consisted  of  two  ten-dollar  bills,  three  five-dollar 
bills,  a  two-dollar  bill,  and  a  one-dollar  bill,  amounting  in  all  to  thirt}-- 
eight  dollars.  The  one  dollar  he  had  a  right  to  retain,  but  the  rest 
of  the  money  he  was  only  authorized  to  count  in  her  presence  and  hand 
back  to  her.  He  had  it  in  his  hands,  but  not  in  his  possession,  any  more 
than  he  would  have  had  possession  of  a  chair  on  which  she  might  have 
invited  him  to  sit.  The  distinction  pointed  out  in  the  instructions  of 
the  court  between  his  getting  it  into  his  hands  with  a  felonious  intent, 
or  forming  the  intent  after  he  had  taken  it,  was  therefore  unimportant. 
The  true  distinction,  upon  principle  and  authority,  is  that  stated  by  the 
cases  upon  the  defendant's  brief,  that  if  the  owner  puts  his  property 
into  the  hands  of  another,  to  use  it  or  do  some  act  in  relation  to  it,  in 
his  presence,  he  does  not  part  with  the  possession,  and  the  conversion 
of  it,  ayiimo  furandi,  is  larceny.  Thus  in  The  People  v.  Call,  1  Denio, 
120,  the  defendant  took  a  promissory  note  to  endorse  a  payment  of 
interest  upon  it,  in  the  presence  of  the  owner  of  the  note,  and  then 
carried  it  off ;  and  it  was  held  that  he  was  rightly  convicted  of  larceny, 

1  See  Reg.  v.  Bramley,  8  Cox  C.  C.  468.  —  Ed. 

'^  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


SECT.  II. J  l^  HILDEBRAND  V.    PEOPLE.  \  519 

altliougli  he  might  have  first  formed  the  intention  of  appropriating  it 
after  it  was  put  in  his  hands.  So  where  a  shopman  placed  some  cloth- 
ing in  the  hands  of  a  customer,  but  did  not  consent  that  he  should  take 
it  away  from  the  shop  till  he  should  have  made  a  bargain  with  the 
owner,  who  was  in  another  part  of  the  shop,  his  carrying  it  off  was  held 
to  be  larceny.  Commonwealth  v.  Wilde,  5  Gray,  83.  8ee  also  Regina 
V.  Thompson,  9  Cox  Crim.  Cas.  244;  Regina  v.  Janson,  4  Cox  Crim. 
Cas.  82.  In  all  such  cases  the  temporary  custody  for  the  owner's  pur- 
poses, and  in  his  presence,  is  only  the  charge  or  custody  of  an  agent 
or  sen'ant ;  gives  no  right  of  control  against  the  owner  ;  and  the  owner's 
possession  is  unchanged.  Exceptions  sustained.^ 


HILDEBRAND   v.  PEOPLE. 
Court  of  Appeals  of  New  York.     1874. 

[Reported  56  New  York,  394.] 

Church,  C.  J.^  The  prosecutor  handed  the  prisoner,  who  was  a  bar- 
tender in  a  saloon,  a  fifty-dollar  bill  (greenback)  to  take  ten  cents  out 
of  it  in  payment  for  a  glass  of  soda.  The  prisoner  put  down  a  few 
coppers  upon  the  counter,  and  when  asked  for  the  change,  he  took 
the  prosecutor  by  the  neck,  and  shoved  him  out  doors,  and  kept  the 
mone}'. 

The  question  is  presented  on  behalf  of  the  prisoner  whether  larceny 
can  be  predicated  upon  these  facts.  There  was  no  trick,  device,  or 
fraud  in  inducing  the  prosecutor  to  deliver  the  bill ;  but  we  must 
assume  that  the  jury  found,  and  the  evidence  was  sufficient  to  justify 
it,  that  the  prisoner  intended,  at  the  time  he  took  the  bill,  feloniously 
to  convert  it  to  his  own  use. 

It  is  urged  that  this  is  not  sufficient  to  convict,  because  the  prosecutor 
voluntarily  parted  with  the  possession  not  only,  but  with  the  property, 
and  did  not  expect  a  return  of  the  same  property-.  This  presents  the 
point  of  the  case.  When  the  possession  and  property  are  delivered 
voluntaril}^,  without  fraud  or  artifice  to  induce  it,  the  animus  fnrandi 
will  not  make  it  larcen}-,  because  in  such  a  case  there  can  be  no  tres- 
pass, and  there  can  be  no  larcen}'  without  trespass.  43  N.  Y.  01. 
But  in  this  case  I  do  not  think  the  prosecutor  should  be  deemed  to 
have  parted  either  with  the  possession  of,  or  property  in,  the  bill.  It 
was  an  incomplete  transaction,  to  be  consummated  in  the  presence  and 
under  the  personal  control  of  the  prosecutor.  There  was  no  trust  or 
confidence  reposed  in  the  prisonei*,  and  none  intended  to  be.     The  de- 

1  Ace.  Reg.  V.  Thompson,  9  Cox  C.  C.  244;  People  v.  Johnson,  91  Cal.  205;  People 
V.  Call,  1  Denio,  120.  — Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


520  HILDEBRAND   V.   PEOPLE.  [CHAP.  XIII 

livery  of  the  bill  and  the  giving  change  were  to  be  simultaneous  acts, 
and  until  the  latter  was  paid  the  delivery  was  not  complete.  The 
prosecutor  laid  his  bill  upon  the  counter,  and  impliedly  told  the  pris- 
oner that  he  could  have  it  upon  delivering  to^him  849.90.  Until  this 
was  done  neither  possession  nor  property  passed ;  and  in  the  mean 
time  the  bill  remained  in  legal  contemplation  under  the  control  and  in 
the  possession  of  the  prosecutor.  Tliis  view  is  not  without  autho]it3-. 
The  case  of  Reg.  v.  McKale,  11  Cox  C.  C.  32,  is  instructive.  The 
prosecutrix  put  down  two  shillings  upon  the  counter,  expecting  to 
receive  small  change  for  it  from  the  prisoner.  There  being  several 
pieces  on  the  counter,  the  prosecutrix  took  up  a  shilling  of  the  pris- 
oner's money,  and  a  shilling  of  her  own,  which  she  did  not  discover 
until  she  was  putting  them  in  the  drawer.  A  confederate  just  then 
attracted  her  attention,  and  the  prisoner  passed  out  with  the  two  shil- 
lings. It  was  held,  upon  full  consideration,  that  the  conviction  for 
stealing  the  two  shillings  was  right.  Kelly,  C.  B.,  said  :  "  The  ques- 
tion is,  did  she  part  with  the  money  she  placed  on  the  counter?  I  say, 
certain!}-  not,  for  she  expected  to  receive  two  shillings  of  the  prisoner's 
money  in  lieu  of  it.  .  .  .  Placing  the  money  on  the  counter  was  only 
one  step  in  the  transaction.  The  act  of  the  prisoner  in  taking  up  the 
money  does  not  affect  the  question  whether  the  prosecutrix  parted  with 
the  property  in  it.  The  property  is  not  pai'ted  with  until  the  whole 
transaction  is  complete,  and  the  conditions  have  been  fulfilled  on  which 
the  property  is  to  be  parted  with.  ...  I  am  of  the  opinion  that  the 
property  in  the  two-shilling  piece  was  not  out  of  the  prosecutrix  for  a 
moment." 

In  Reg.  V.  Slowly,  12  Cox  C.  C.  269,  the  prosecutor  sold  onions  to 
the  prisoners,  who  agreed  to  pa}'  ready  money  for  them.  The  onions 
were  unloaded  at  a  place  indicated  by  the  prisoners,  and  the  prosecutor 
signed  a  receipt  at  the  request  of  the  prisoners,  when  the}'  refused  to 
restore  the  onions  or  paj'  the  price.  A  conviction  for  larcen}-  was  held 
right,  the  jur}-  having  found  the  original  intention  felonious.  This  was 
upon  the  ground  that  the  deliver}-  and  payment  were  to  be  simulta- 
neous acts,  that  the  property  did  not  pass  until  payment,  and  that 
no  credit  or  trust  was  intended.  See  also  id.,  248,  257 ;  2  Russ.  on 
Cr.,  22. 

The  counsel  for  the  prisoner  relies  upon  the  case  of  Reg.  v.  Thomas, 
9  C.  &  P.  7-4] .  There  the  prosecutor  permitted  the  prisoner  to  take  a 
sovereign  to  go  out  to  get  it  changed.  The  court  held  that  the  prisoner 
could  not  be  convicted  of  larceny,  because  he  had  divested  himself  of 
the  entire  possession  of  the  sovereign  and  never  expected  to  have  it 
back.  Tills  was  a  nisi  prius  decision,  and  is  not  as  authoritative  for 
that  reason  ;  but  the  distinction  between  that  case  and  this  is  the  one 
first  suggested.  There  all  control,  power,  and  possession  was  parted 
with,  and  the  prisoner  was  intrusted  with  the  money,  and  was  not  ex- 
pected to  return  it.  Here,  as  we  have  seen,  the  prosecutor  retained  the 
control  and  legally  the  possession  and  property.      The  line  of  dis- 


SECT.  II.]  COMMONWKALTH   V.    LANNA^.  521 

tinction  is  a  narrow  one,  but  it  is   substantial   and   sufficiently  well 
deflned. 

The  judgment  must  be  affirmed. 

All  concur.  Judjuient  affirmed} 


COMMONWEALTH  v.  LANNAN. 
Supreme  Judicial  Court  of  Massachusetts.     1891. 

[Reported  153  M assachusetts ,  2%1 -1 

Holmes,  J.  The  defendant  is  indicted  for  the  larceny  of  promissor}- 
notes,  the  propert}-  of  one  Teeling,  and  has  been  found  guilty.  The 
case  is  before  us  on  exceptions  to  the  refusal  of  the  court  below  to  rule 
that  the  evidence  was  insufficient  to  support  the  indictment,  and  also  to 
the  instructions  given  to  the  jury.  The  evidence  tended  to  prove  the 
following  facts.  The  defendant  was  an  attorney  employed  by  Teeling 
to  ascertain  the  price  of  certain  land.  The  price  mentioned  to  him 
was  one  hundred  and  twenty-five  dollars.  He  told  Teeling  that  the 
lowest  price  was  three  hundred  and  twentj'-five  dollars,  three  hundred 
dollars  to  go  to  the  owners  of  the  land,  fifteen  to  Bent,  the  agent,  with 
whom  the  defendant  communicated,  and  ten  dollars  to  the  defendant. 
Teeling  assented  to  the  terms,  and  gave  Bent  directions  as  to  the  deed. 
When  the  deed  was  read}-,  Teeling,  Bent,  and  the  defendant  met.  The 
defendant  approved  the  deed,  and  said  to  Teeling,  "  Pay  over  the 
money."  Teeling  counted  out  three  hundred  and  twenty-five  dollars 
on  the  table  in  front  of  the  defendant,  who  counted  it,  took  it  from  the 
table,  and  requested  Bent  to  go  into  the  next  room.  He  then  gave 
Bent  one  hundred  and  twenty-five  dollars  of  the  money,  returned  to 
Teeling,  gave  him  a  receipt  for  ten  dollars  and  kept  the  rest  of  the 
money.  The  court  instructed  the  jury  "  that  upon  the  evidence  the}' 
might  find  the  defendant  guilty  of  larceny  if  they  were  satisfied  that  he 
had  obtained  the  money  of  said  Teeling  by  false  premeditated  trick  or 
device  ;  that  although  Teeling  might  have  given  the  manual  custody  of 
the  mone}'  to  the  defendant,  nevertheless  the  legal  possession  would 
remain  in  Teeling  under  such  circumstances,  and  the  larceny  would  l)e 
complete  when  the  defendant,  after  thus  getting  possession  of  Teeling's 
money  and  inducing  him  to  count  out  one  hundred  and  ninety  dollars 
more  than  was  needed,  appropriated  it  to  his  own  use." 

When  the  defendant  took  up  the  money  from  the  table  it  had  not  yet 
passed  under  the  dominion  of  Bent,  who  represented  the  opposite  party. 
The  defendant  did  not  receive  it  as  representing  the  opposite  party ; 
he  purported  to  be  acting  in  the  interest  of  Teeling.     The  jury  would 

^  Ace.  Reg.  V.  Johnson,  5  Cox  C.  C.  372  ;  Levy  r.  State,  79  Ala.  259  ;  State  r.  Fenn, 
41  Conn.  590  ;  Iluber  r.  State,  57  Ind.  341 ;  State  v.  Anderson,  25  Minn.  66.  See  State 
V.  Watson,  41  N.  II.  533.— -Ed. 


522  COMMONWEALTH   V.   LANNAN.  [CHAP.  XIII. 

have  been  warranted  in  finding  that  Teeling  impliedly  authorized  the 
defendant  to  take  up  the  money  from  the  table,  but  they  only  could 
have  found  that  he  allowed  him  to  do  so  for  the  purpose  of  immediately 
transferring  the  identical  bills,  or  all  but  ten  dollars  of  them,  to  Bent 
under  Teeling's  eyes.  Subject  to  a  single  consideration,  to  be  men- 
tioned later,  there  is  no  doubt  that  in  thus  receiving  the  money  for  a 
moment  the  defendant  purported  at  most  to  act  as  Teeling's  servant, 
or  hand,  under  his  immediate  direction  and  control.  Therefore  not 
oul\-  the  title  to  the  mone}-,  but  the  possession  of  it,  remained  in  Teel- 
ino"  while  the  money  was  in  the  defendant's  custody.  Commonwealth 
i\  O'Malley,  97  Mass.  584.  If  the  defendant  had  misappropriated  the 
whole  sum,  or  if  he  misappropriated  all  that  was  left  after  paying 
Bent,  the  offence  would  be  larceny.  Commonwealth  v.  Berr}',  99  Mass. 
428;  Regina  v.  Cooke,  L.  R,  l^C.  C.  295;  s.  c.  12  Cox  C.  C.  10; 
Regina  v.  Thompson,  Leigh  &  Cave,  225,  230;  2  East  P.  C.  c.  16, 
§§  110,  115.  See  further  Commonwealth  v.  Donahue,  148  Mass.  529, 
530,  and  cases  cited. 

The  instructions  made  the  defendant's  liabilit}'  conditional  upon  his 
having  obtained  the  money  from  Teeling  b}'  a  premeditated  trick  or 
device.  If  he  did  so,  and  appropriated  all  that  was  left  after  paying 
Bent,  he  was  guilt}'  of  larceny,  irrespective  of  the  question  whether 
Teeling  retained  possession,  according  to  the  dicta  in  Commonwealth  y. 
Barry,  124  Mass.  325,  327,  under  the  generally-  accepted  doctrine  that 
if  a  part}'  fraudulentl}'  obtains  possession  of  goods  from  the  owner 
with  intent  at  the  time  to  convert  them  to  his  own  use,  and  the 
owner  does  not  part  with  the  title,  the  offence  is  larcen}'.  Even  if  the 
possession  had  passed  to  the  defendant,  there  can  be  no  question  that 
the  title  remained  in  Teeling  until  the  money  should  be  handed  to  Bent. 
See  note  to  Regina  v.  Thompson,  Leigh  &  Cave,  225,  230. 

In  this  case,  however,  by  the  terms  of  his  agreement  with  Teeling, 
the  defendant  had  the  right  to  retain  ten  dollars  out  of  the  moneys  in 
his  hands,  and  it  ma}'  be  argued  that  it  is  impossible  to  particularize 
the  bills  which  were  stolen,  seeing  that  the  defendant  appropriated  bills 
to  the  amount  of  one  hundred  and  ninety-five  dollars  all  at  once,  with- 
out distinguishing  between  the  ten  he  had  a  right  to  select  and  the  one 
hundred  and  eighty-five  to  which  he  had  no  right.  This  argument 
appears  to  have  troubled  some  of  the  English  judges  in  one  case, 
although  they  avoided  resting  their  decision  on  that  ground.  Regina 
V.  Thompson,  Leigh  &  Cave,  233,  236,  238.  If  the  argument  be  sound, 
it  might  cause  a  failure  of  justice  by  the  merest  technicality.  For  it 
easily  might  happen  that  there  was  no  false  pretence  in  the  case,  and 
that  a  man  who  had  appropriated  a  large  fund,  some  small  part  of 
which  he  had  a  right  to  take,  would  escape  unless  he  could  be  held 
guilty  of  larceny.  We  think  the  answer  to  the  argument  is  this.  All 
the  bills  belonged  to  Teeling  until  the  defendant  exercised  his  right  to 
appropriate  ten  dollars  of  them  to  his  claim.  He  could  make  an  appro- 
priation only  by  selecting  specific  bills  to  that  amount.     He  had  no 


SECT.  II.]  reporter's   NOTE,  523 

property  in  the  whole  mass  while  undivided.  If  he  appropriated  tlie 
bills  as  a  whole,  he  stole  the  whole,  and  the  faet  that  he  might  have 
taken  ten  dollars  does  not  help  him,  because  he  did  not  take  any  ten 
dollars  by  that  title,  or  in  the  only  way  in  which  he  had  a  riglit  to  take 
it.  The  later  English  cases  seem  to  admit  that  a  man  may  be  liable  for 
the  larceny  of  a  sovereign  given  him  in  payment  of  a  debt  for  a  less 
amount  in  expectation  of  receiving  change,  as  well  as  in  cases  like 
Commonwealth  v.  Berry,  ubi  supra,  where  there  is  nothing  due  the 
defendant;  Kegina  v.  Gumble,  L.  R.  2  C.  C.  1  ;  s.  c.  12  Cox  C.  C. 
248  ;  Regina  v.  Bird,  12  Cox  C.  C.  257,  2G0.  See  further  Ilildebrand 
V.  People,  56  N.  Y.  394. 

Although  the  point  is  immaterial  to  the  second  ground  of  liability 
which  we  have  mentioned,  we  may  add  that  we  are  not  disposed  to 
think  that  the  fact  that  the  defendant  may  have  been  expected  to 
select  ten  dollars  for  himself  during  the  moment  that  the  bills  were  in 
his  hands  was  sufficient  to  convert  his  custody  into  possession.  That 
right  on  his  part  was  merely  incidental  to  a  different  governing  object, 
and  it  would  be  importing  into  a  very  simple  transaction  a  complexity 
which  does  not  belong  there  to  interpret  it  as  meaning  that  the  defen- 
dant held  the  bills  on  his  own  behalf  with  a  lien  upon  them  until  he 
could  withdraw  his  pa}'. 

It  is  not  argued  that  the  averment  as  to  promissory  notes  is  not 
sustained.     Commonwealth  v.  Jenks,  138  Mass.  484,  488. 

Exceptions  overruled. 


REPORTER'S  NOTE. 
Common  Pleas.     1487. 

{Reported  Year  Book  3  Hen.  VII.,  12,  pi  9.] 

HussEY  put  a  question.  If  a  shepherd  steals  the  sheep  which  are 
in  his  charge,  or  a  butler  the  pieces  which  are  in  his  charge,  or  servants 
other  things  which  are  in  their  charge,  whether  it  shall  be  called  felony. 
And  it  seemed  to  him  that  it  would.  And  he  cited  a  case  which  was, 
that  a  butler  had  stolen  certain  stuff  which  was  in  his  charge,  and  was 
hanged  for  it.  Haugii  [J.]  cited  the  case  of  Adam  Goldsmith  of 
London,  who  had  stolen  certain  stuff  which  was  in  his  charge,  and  was 
lianged  for  it.  Brian  [C.  J.]  —  It  cannot  be  felony,  because  he  could 
not  take  vi  cfi  armis,  because  he  had  charge  of  it.  And  the  justices 
were  of  the  same  opinion,  and  so  no  discussion,  etc.  R.  see  M.  13  E. 
4  r  3,  P.  13  E.  4  f.  9,  T.  22  E.  3  Coroii  256,  what  shall  be  called  felony 
of  goods. 


524  eepokter's  note.  [chap,  xiil 


REPORTER'S  NOTE. 
King's  Bench.     1506. 

[Reported  Year  Book  21  HeuMI.,  U,  pi.  21.] 

In  the  King's  Bench  Cutler,  Serjeant,  and  Pigot^  apprentice,  vrere 
at  the  bar ;  and  Pigot  put  this  question  to  Cutler :  If  I  deliver  a  bag 
of  money  to  my  servant  to  keep,  and  he  flees  and  goes  away  from  me 
with  the  bag,  is  it  felony  ?  Cutler  said  yes  ;  for  so  long  as  he  is  in  my 
house,  or  with  me,  whatever  I  have  delivered  to  him  is  adjudged  in  my 
possession.  As  my  butler  who  has  m^'  plate  in  charge,  if  he  flees  with 
it,  it  is  felon}' ;  the  same  law  if  he  who  keeps  my  horse  goes  away  with 
it ;  and  the  case  is,  that  they  are  at  all  times  in  my  possession.  But 
if  I  deliver  a  horse  to  my  servant  to  ride  on  a  journey,  and  he  flees 
with  it,  it  is  not  felony,  for  he  comes  lawfully  by  the  horse  by  delivery. 
And  so  it  is,  if  I  give  him  a  bag  to  carr}'  to  London,  or  to  pa}-  to  some 
one,  or  to  buy  something,  and  he  flees  with  it,  it  is  not  felony ;  for  it 
is  out  of  my  possession,  and  he  comes  lawfully*  b}'  it.  Pigot.  —  It 
ma}'  well  be,  for  the  master  in  all  these  cases  has  a  good  action  against 
him,  8C.  detinue,  or  action  of  account. 


REPORTER'S  NOTE. 
Common  Pleas.     1533. 

[Reported  Dyer,  5  a.] 

YoRKE  puts  this  question  upon  the  statute  21  H.  VIII.  [c.  7.],  which 
is  ' '  that  if  any  master  or  mistress  deliver  any  goods  to  his  servant  to 
keep,  who  withdraws  himself,  and  goes  away  with  the  goods  to  the 
intent  to  steal  them,  or  if  he  embezzle  the  goods  of  his  master,  or 
convert  them  to  his  own  use,  if  the  goods  be  worth  forty  shillings,  it 
shall  be  felony."  ^  And  a  man  delivers  a  bond  to  his  servant  to  receive 
£20  of  the  obligor,  and  the  servant  receives  them,  and  after  that  goes 
away,  or  converts  them  to  his  own  use,  whether  this  be  within  the  mean- 
ing of  the  statute  or  not  ?  And  by  the  better  opinion  it  is  not,  for  he 
did  not  deliver  to  him  any  goods  ;  for  a  bond  is  not  a  thing  in  value,  but 
a  chose  in  action.  And  Englefielde,  J.,  said  that  if  a  man  deliver  to 
his  apprentice  wares  or  merchandises  to  sell  at  a  market  or  fair,  and  he 

1  The  preamble  to  this  act  concludes, "  which  misbehaYior  so  done  was  doubtful  in  the 
common  law  whether  it  were  felony  or  not,  and  by  rea.son  thereof  the  foresaid 
servants  have  been  in  great  boldness  to  commit  such  or  like  offences."  By  Sect.  2 
it  is  provided  that  the  act  shall  not  apply  to  an  apprentice,  or  to  a  servant  under 
the  age  of  eighteen.  —  Ed. 


SECT.  II.]  B.VZELEY'S  CASE.  525 

sell  them,  and  receive  money  for  them,  and  go  away,  that  is  not  within 
the  statute  ;  for  he  had  not  it  by  the  deliver}'  of  his  master,  nor  goes 
off  with  the  things  delivered  to  him.  Qiuere.  For  the  money  was  not 
delivered  to  tiie  servant  by  the  hands  of  his  master,  but  of  the  obligor. 
But  if  one  of  my  servants  deliver  to  another  of  my  servants  my  goods, 
and  he  go  off  with  them,  that  is  felony  ;  for  it  shall  be  said  my  delivery. 
And  FiTZUEUBKUT,  J.,  said  that  iu  the  case  of  a  bond,  by  gift  of  oitiiiiu 
bona  et  catalla,  bonds  pass." 


BAZELEY'S  CASE. 
Crown  Case  Reserved.     1799. 

[Reported  Leach,  Ath  ed.  835.] 

At  the  old  Bailey  in  February  Session,  1799,  Joseph  Bazelcy  was 
tried  before  John  Silvester,  Esq.,  Common  Serjeant  of  the  city  of  Lon- 
don, for  feloniously  stealing  on  the  18th  January  preceding,  a  bank-note 
of  the  value  of  one  hundred  pounds,  the  property  of  Peter  Esdaile, 
Sir  Benjamin  Hammett,  William  Esdaile,  and  John  Hammett. 

The  following  facts  appeared  in  evidence :  The  prisoner,  Joseph 
Bazeley,  was  the  principal  teller  at  the  house  of  Messrs.  Esdaile's  and 
Hammett's,  bankers,  in  Lombard  Street,  at  the  salary  of  £100  a  year, 
and  his  duty  was  to  receive  and  pay  money,  notes,  and  bills,  at  the 
counter.  The  manner  of  conducting  the  business  of  this  banking- 
house  is  as  follows  :  There  are  four  tellers,  each  of  whom  has  a  separate 
money  book,  a  separate  raone3'-drawer,  and  a  separate  bag.  The 
prisoner  being  the  chief  teller,  the  total  of  the  receipts  and  payments 
of  all  the  other  mone3'-books  were  every  evening  copied  into  his,  and 
the  total  balance,  or  rest,  as  it  is  technically  called,  struck  in  his  book 
and  the  balances  of  the  other  money-books  paid,  b\'  the  other  tellers, 
over  to  him.  When  an}-  moneys,  whether  in  cash  or  notes,  are  brought 
by  customers  to  the  counter  to  be  paid  in,  the  teller  who  receives  it 
counts  it  over,  then  enters  the  bank-notes  or  drafts,  and  afterwards  the 
cash,  under  the  customer's  name,  in  his  book ;  and  then,  after  casting 
up  the  total,  it  is  entered  in  the  customer's  book.  The  monc}'  is  then 
put  into  the  teller's  bag,  and  the  bank-notes  or  other  papers,  if  any, 
put  into  a  box  which  stands  on  a  desk  behind  the  counter,  directl}' 
before  another  clerk,  who  is  called  the  cash  book-keeper,  who  makes 
an  entry  of  it  in  the  received  cash-book  in  the  name  of  the  person  who 
has  paid  it  in,  and  which  he  finds  written  by  the  receiving  teller  on  the 
back  of  the  bill  or  note  so  placed  in  the  drawer.  The  prisoner  wa.s 
treasurer  to  an  association  called  "The  Ding  Dong  IVIining  Company  ;" 
and  in  the  course  of  the  year  had  many  bills  drawn  on  him  by  the  com- 

1  But  see,  contra,  on  thi.s  last  point,  Calye's  case,  8  Co.  33.  —  Ed. 


526  bazeley's  case.  [chap,  xiil 

pain-,  and  many  bills  drawn  on  other  persons  remitted  to  him  by  the 
company.  In  the  month  of  January,  1799,  the  prisoner  had  accepted 
bills  on  account  of  the  company,  to  the  amount  of  £112  4s.  Id.  and 
had  in  his  possession  a  bill  of  £16G  75.  3c7.  belonging  to  the  corapan}', 
but  which  was  not  due  until  the  9th  Februar\'.  One  of  the  bills,  amount- 
ing to  £100,  wliich  the  prisoner  had  accepted  became  due  on  the  18th 
January.  Mr.  William  Gilbert,  a  grocer  in  the  Surry-road,  Black- 
friars,  kept  his  cash  at  the  banking-house  of  the  prosecutors,  and  on  the 
18th  January-,  1799,  he  sent  his  servant,  George  Cock,  to  pay  in  £137. 
This  sum  consisted  of  £122  in  bank-notes,  and  the  rest  in  cash.  One 
of  these  bank-notes  was  the  note  which  the  prisoner  was  indicted  for 
stealing.  The  prisoner  received  this  money  from  George  Cock,  and 
after  entering  the  £137  in  Mr.  Gilbert's  bank-book,  entered  the  £15 
cash  in  his  own  monej'-book,  and  put  over  the  £22  in  bank-notes  into 
the  drawer  behind  him,  keeping  back  the  £100  bank-note,  which  he  put 
into  his  pocket,  and  afterwards  paid  to  a  banker's  clerk  the  same  day 
at  a  clearing-house  in  Lombard  Street,  in  discharge  of  the  £100  bill 
which  he  had  accepted  on  account  of  the  Ding  Dong  Mining  Company. 
To  make  the  sum  in  Mr.  Gilbert's  bank-book,  and  the  sum  in  the  book 
of  the  banking-house  agree,  it  appeared  that  a  unit  had  been  added  to 
the  entry  of  £37  to  the  credit  of  Mr.  Gilbert,  in  the  book  of  the  bank- 
ing-house, but  it  did  not  appear  by  anj^  direct  proof  that  this  alteration 
had  been  made  by  the  prisoner ;  it  appeared,  however,  that  he  had  made 
a  confession,  but  the  confession  having  been  obtained  under  a  promise 
of  favor,  it  was  not  given  in  evidence. 

Const  and  Jackson,  the  prisoner's  counsel,  submitted  to  the  court 
that  to  constitute  a  larcen}',  it  was  necessary,  in  point  of  law,  that  the 
property  should  be  taken  from  the  possession  of  the  prosecutor,  but 
that  it  was  clear  from  the  evidence  in  this  case  that  the  bank-note 
charged  to  have  been  stolen  never  was  either  in  the  actual  or  the 
constructive  possession  of  Esdaile  and  Hammett,  and  that  even  if  it 
had  been  in  their  possession,  yet  that  from  the  manner  in  which  it  had 
been  secreted  by  the  prisoner,  it  amounted  onl}'  to  a  breach  of  trust. 

The  court  left  the  facts  of  the  case  to  the  consideration  of  the  jury, 
and  on  their  finding  the  prisoner  guilty,  the  case  was  reserved  for  the 
opinion  of  the  twelve  judges  on  a  question  whether,  under  the  circum- 
stances above  stated,  the  taking  of  the  bank-note  was  in  law  a  felonious 
taking,  or  only  a  fraudulent  breach  of  trust. 

The  case  was  accordingly  argued  before  nine  of  the  judges  in  the 
Exchequer  Chamber,  on  Saturday,  27th  April,  1799,  by  Const  for  the 
prisoner,  and  by  Fielding  for  the  Crown. 

Const,  for  the  prisoner,  after  remarking  that  the  prosecutor  never  had 
actual  possession  of  the  bank-note,  and  defining  the  several  offences  of 
larceny,  fraud,  and  breach  of  trust,  viz.,  that  larceny  is  the  taking  of 
valuable  propert}'  from  the  possession  of  another  without  his  consent 
and  against  his  will ;  secondlv,  that  fraud  consists  in  obtaining  valua- 
ble property  from  the  possession  of  another  with  his  consent  and   will, 


vSECT.  II.]  BAZELEY'S   CASE.  527 

b}'  means  of  some  artful  device,  against  the  subtilty  of  which  common 
prudence  and  caution  are  not  sufllcient  safeguards ;  and,  thirdl}-,  that 
breach  of  trust  is  the  abuse  or  misusing  of  that  property  which  the 
owner  has,  without  any  fraudulent  seducement,  and  with  his  own  free 
will  and  consent,  put,  or  permitted  to  be  put,  eitlicr  for  particular  or 
ger)cral  purposes,  into  the  possession  of  the  trustee,  —  proceeded  to 
argue  the  case  upon  the  following  points  :  — 

First,  That  the  prosecutors  caiuiot,  in  contemplation  of  law,  be  said 
to  have  had  a  constructive  possession  of  this  bank-note,  at  the  tune 
the  i)iisonor  is  charged  with  having  tortiously  converted  it  to  his  own 
use. 

Secondly,  That,  supposing  the  prosecutors  to  have  had  the  possession 
of  this  note,  the  prisoner,  under  the  circumstances  of  this  case,  cannot 
be  said  to  have  tortiously  taken  it  from  that  possession  with  a  felonious 
intention  to  steal  it. 

Thirdly,  That  the  relative  situation  of  the  prosecutors  and  the  pris- 
oner makes  this  transaction  merel}'  a  breach  of  trust ;  and, 

Fourthly,  That  this  is  not  one  of  those  breaches  of  trust  which  the 
Legislature  has  declared  to  be  felony. 

The  first  point,  viz.,  that  the  prosecutor  cannot,  in  contempla- 
tion of  law,  be  said  to  have  had  a  constructive  possession  of  this 
bank-note  at  the  time  the  prisoner  is  charged  with  having  tortiousl}' 
converted  it  to  his  own  use.  To  constitute  the  crime  of  larceny, 
the  propert}'  must  be  taken  from  the  possession  of  the  owner ;  this 
possession  must  be  either  actual  or  constructive.  It  is  clear  that  the 
prosecutors  had  not,  upon  the  present  occasion,  the  actual  possession 
of  the  bank-note,  and  therefore  the  inquiry  must  be,  whether  the}*  had 
the  constructive  possession  of  it ;  or,  in  other  words,  whether  the  pos- 
session of  the  sen'ant  was,  under  the  circumstances  of  this  case,  the 
possession  of  the  master.  Property  in  possession  is  said  by  Sir  William 
Blackstone  to  subsist  only  where  a  man  hath  both  the  right  to,  and 
also  the  occupation  of,  the  property.  The  prosecutors  in  the  present 
case  had  only  a  right  or  title  to  possess  the  note,  and  not  the  absolute 
or  even  qualified  possession  of  it.  It  was  never  in  their  custody  or 
under  their  control.  There  is  no  difference  whatever  as  to  the  question 
of  possession  between  real  and  personal  property ;  and  if,  after  the 
death  of  an  ancestor,  and  before  the  entry  of  his  heir  upon  the  descend- 
ing estate,  or  if,  after  the  death  of  a  particular  tenant,  and  before  the 
entry  of  the  remainder-man,  or  reversioner,  a  stranger  should  take  pos- 
sesion of  the  vacant  land,  the  heir  in  the  one  case,  and  the  remainder- 
man or  reversioner  in  the  other,  would  be  like  the  prosecutor  in  the 
present  case,  only  entitled  to,  but  not  possessed  of,  the  estate ;  and 
each  of  them  must  recover  possession  of  it  by  the  respective  remedies 
which  the  law  has  in  such  cases  made  and  provided.  Suppose  the  pris- 
oner had  not  parted  with  the  note,  but  had  merely  kept  it  in  his  own 
custody,  and  refused  on  any  pretence  whatever  to  deliver  it  over  to  his 
employers,  they  could  only  have  recovered  it  by  means  of  an  action  of 


528  bazeley's  case.  [chap.  xiit. 

trover  or  detinue,  the  first  of  which  presupposes  the  person  against 
whom  it  is  brought  to  have  obtained  possession  of  the  property  by 
lawful  means,  as  by  delivery  or  finding ;  and  the  second,  that  the  right 
of  property  only,  and  not  the  possession  of  it,  either  really  or  con- 
structively, is  in  the  person  bringing  it.  The  prisoner  received  this 
note  by  the  permission  and  consent  of  the  prosecutors,  while  it  was 
passing  from  the  possession  of  Mr.  Gilbert  to  the  possession  of  Messrs. 
Esdaile's  and  Hammett's  ;  and  not  having  reached  its  destined  goal,  but 
having  been  thus  intercepted  in  its  transitory  state,  it  is  clear  that  it 
never  came  to  the  possession  of  the  prosecutors.  It  was  delivered  into 
the  possession  of  the  prisoner,  upon  an  implied  confidence  on  the  part  of 
the  prosecutors  that  he  would  deliver  it  over  into  their  possession,  but 
which,  from  the  pressure  of  temporary  circumstances,  he  neglected  to  do. 
At  the  time,  therefore,  of  the  supposed  conversion  of  this  note,  it  was  in 
the  legal  possession  of  the  prisoner.  To  divest  the  prisoner  of  this  pos- 
session, it  certainly  was  not  necessary  that  he  should  have  delivered  this 
note  into  the  hands  of  the  prosecutors,  or  of  any  other  of  their  servants 
personally  ;  for  if  he  had  deposited  it  in  the  drawer  kept  for  the  recep- 
tion of  this  species  of  property,  it  would  have  been  a  delivery  of  it 
into  the  possession  of  his  masters  ;  but  he  made  no  such  deposit,  and 
instead  of  determining  in  any  way  his  own  possession  of  it,  he  con- 
vej^ed  it  immediately  from  the  hand  of  Mr.  Gilbert's  clerk  into  his  own 
pocket.  Authorities  are  not  wanting  to  support  this  position.  In  the 
Year-book,  7  Hen.  6  fol.  43,  it  is  said,  "  If  a  man  deliver  goods  to 
another  to  keep,  or  lend  goods  to  another,  the  deliverer  or  lender  may 
commit  felony  of  them  himself,  for  he  hath  but  Jus  projjrietatis  ;  the 
Jiis  possessionis  being  with  the  bailee  ;  "  and  permitting  one  man  to 
receive  goods  to  the  use  of  another,  who  never  had  any  possession  of 
them,  is  a  stronger  case.  So  long  ago  as  the  year  1687,  the  following 
case  was  solemnly  determined  in  the  Court  of  King's  Bench  on  a  special 
verdict :  The  prisoner  had  been  a  servant,  or  journeyman,  to  one  John 
Fuller,  and  was  employed  to  sell  goods  and  receive  money  for  his 
master's  use  ;  in  the  course  of  his  trade  he  sold  a  large  parcel  of  goods  ; 
received  one  hundred  and  sixty  guineas  for  them  from  the  purchaser ; 
deposited  ten  of  them  in  a  private  place  in  the  chamber  where  he  slept ; 
and,  on  his  being  discharged  from  his  service,  took  away  with  him  the 
remaining  one  hundred  and  fifty  guineas  ;  but  he  had  not  put  any  of 
the  money  into  his  master's  till,  or  in  any  way  given  it  into  his  possess- 
sion.  Before  this  embezzlement  was  discovered  he  suddenly  decamped 
from  his  master's  service,  leaving  his  trunk,  containing  some  of  his 
clothes  and  the  ten  guineas  so  secreted  behind  him ;  but  he  afterwards, 
in  the  night-time,  broke  open  his  master's  house,  and  took  away  with 
him  the  ten  guineas  which  he  had  hid  privately  in  his  bed-chamber ; 
and  this  was  held  to  be  no  burglary,  because  the  taking  of  the  money 
was  no  felony :  for  although  it  was  the  master's  money  in  right,  it  was 
the  servant's  money  in  possession,  and  the  first  original  act  no  felony. 
This  case  was  cited  by  Sir  B.  Shower,  in  his  argument  in  the  case  of 


SECT.  II.]  BAZELEY'S   CASK  529 

Rex  V.  Meers,  and  is  said  to  be  reported  by  Gouldsborough,  18G  ;  but 
I  have  been  favored  with  a  manuscript  report  of  it,  extracted  from  a 
collection  of  cases  in  the  possession  of  the  late  Mr.  Reynolds,  Clerk  of 
the  Arraigns,  at  the  Old  liailey,  under  the  title  of  Rex  r.  Diugley,  by 
which  it  appears  that  the  special  verdict  was  found  at  the  Easter 
Session,  1G87,  and  argued  in  the  King's  Beucli  in  Hilary  Term,  3  Jac. 
II.,  and  in  which  it  is  said  to  have  been  determined  that  this  ofTence 
was  not  burglary,  but  trespass  only.  The  law  of  this  case  has  been 
recently  confirmed  by  the  case  of  the  King  v.  Bull.  The  prisoner, 
Thomas  Bull,  was  tried  at  the  Ohl  Bailey,  January  Session,  17'J7, 
before  Mr.  Justice  Heath,  on  an  indictment  charging  him  with  having 
stolen,  on  the  7th  of  the  same  month,  a  half-crown  and  three  shillings, 
the  property  of  William  Tilt,  who  was  a  confectioner,  in  Cheapside, 
with  whom  the  prisoner  lived  as  a  journeyman;  and  Mr.  Tilt  having 
had,  for  some  time  before,  strong  suspicion  that  the  prisoner  had  robbed 
him,  adopted  the  following  method  for  the  purpose  of  detecting  him  : 
On  the  7th  January,  the  day  laid  in  the  indictment,  he  left  only  four  six- 
pences in  the  till ;  and  taking  two  half-crowns,  thirteen  shillings,  and 
two  sixpences,  went  to  the  house  of  Mr.  Garner,  a  watchmaker,  who 
marked  the  two  half-crowns,  several  of  the  shillings,  and  the  sixpences, 
with  a  tool  used  in  his  line  of  business,  that  impressed  a  figure  some- 
thing like  a  half-moon.  Mr.  Tilt,  having  got  the  money  thus  marked, 
went  with  it  to  the  house  of  a  Mrs.  Hill ;  and  giving  a  half-crown  and 
three  of  the  shillings  to  Ann  Wilson,  one  of  her  servants,  and  five  of 
the  shillings  and  the  other  sixpence  to  Mary  Bushman,  another  of  her 
servants,  desired  them  to  proceed  to  his  house,  and  purchase  some  of 
his  goods  of  the  prisoner,  whom  he  had  left  in  care  of  the  shop.  The 
two  women  went  accordingly  to  Mr.  Tilt's  shop,  where  Ann  Wilson 
purchased  confectionary  of  the  prisoner  to  the  amount  of  five  shillings 
and  three-pence,  gave  him  the  half-crown  and  three  shillings,  and  re- 
ceived three-pence  in  change ;  and  Mary  Bushman  purchased  of  him 
articles  to  the  amount  of  four  shillings  and  sixpence,  for  which  she  paid 
him  out  of  the  money's  she  had  so  received,  and  returned  the  other  shilling 
to  her  mistress,  Mary  Hill :  but  neither  of  these  women  observed  whether 
the  prisoner  put  either  the  whole  or  an}'  part  of  the  money  into  the  till 
or  into  his  pocket.  While  the  women,  however,  were  purchasing  these 
things  Mr.  Tilt  and  Mr.  Garner  were  waiting,  with  a  constable,  at  a 
convenient  distance,  on  the  outside  of  the  shop-door ;  and  when  they 
observed  the  women  come  out,  the}-  went  immediately  into  the  shop, 
where,  on  examining  the  prisoner's  pockets,  they  found  among  the 
silver  coin,  amounting  to  fifty-three  shillings,  which  he  had  in  his  waist- 
coat pocket,  the  marked  half-crowns,  and  three  of  the  marked  shillings, 
which  had  been  given  to  Wilson  and  Bushman  ;  only  seven  sliillin'j^ 
and  sixpence  were  found  in  the  till ;  and  it  appeared  that  Mrs.  Tilt  liad 
taken  one  shilling  in  the  shop  and  put  it  into  the  till  during  her  hus- 
band's absence  ;  so  that  the  two  shillings  which  had  been  left  therein 
in  the  morning,  the  one  shilling  which  Mrs.  Tilt  had  put  into  it,  the 

34 


530  bazeley's  case.  [chap.  xiii. 

four  shillings  and  sixpence  laid  out  by  Mary  Bushman,  and  the  five 
shillings  and  sixpence  marked  money  which  was  found  in  the  prisoner's 
pocket,  made  up  the  sum  which  ought  to  have  been  put  into  the  till.  The 
prisoner  upon  this  evidence  was  found  guilt}-,  and  received  sentence  of 
transpoitation ;  but  a  case  was  reserved  for  the  opinion  of  the  twelve 
judges,  Whether,  as  Mr.  Tilt  had  divested  himself  of  this  money  by 
giving  it  to  Mary  Hill,  who  had  given  it  to  her  servants  in  the  manner 
and  for  the  purpose  above  described,  and  as  it  did  not  appear  that  the 
prisoner  had  on  receiving  it  from  them,  put  it  into  the  till,  or  done  any- 
thing with  it  that  could  be  construed  a  restoring  of  it  to  the  possession 
of  his  master,  the  converting  of  it  to  his  own  use  by  putting  it  into  his 
pocket  could  amount  to  the  crime  of  larceu}',  it  being  essential  to  the 
commission  of  that  offence  that  the  goods  should  be  taken  from  the  pos- 
session of  the  owner;  and,  although  no  opinion  was  ever  publicly 
delivered  upon  this  case,  the  prisoner  was  discharged.  After  these  de- 
terminations, it  cannot  be  contended  that  the  possession  of  the  servant 
is  the  possession  of  the  master  ;  for,  independentlj'  of  these  authorities, 
the  rule  that  the  possession  of  the  servant  is  the  possession  of  the 
master  cannot  be  extended  to  a  case  in  which  the  property  never  was 
in  the  master's  possession,  however  it  ma}'  be  so  construed  in  cases 
where  the  identical  thing  stolen  is  delivered  by  the  mastei',  or  where  the 
question  is  between  the  master  and  a  third  person.  *'  If,"  says  Sir  Mat- 
thew Hale,  *''I  deliver  m}'  servant  a  bond  to  receive  mone}-,  or  deliver 
goods  to  him  to  sell,  and  he  receives  the  money  upon  the  bond  or 
goods  and  go  away  with  it,  this  is  not  felony ;  for  though  the  bond 
or  goods  were  delivered  to  him  b}-  the  master,  yet  the  mone}'  was  not 
delivered  to  him  by  the  master."  But  he  admits,  that  "  if  taken  awa}' 
from  the  servant  by  a  trespasser,  the  master  may  have  a  general  action 
of  trespass ; "  which  shows  that  the  law,  in  a  criminal  case,  will  not, 
under  such  circumstances,  consider  the  master  to  have  a  constructive 
possession  of  the  property.  Such  a  possession  arises  by  mere  impli- 
cation of  law ;  and  it  is  an  established  rule  that  no  man's  life  shall  be 
endangered  by  any  intendment  or  implication  whatsoever.^ 

The  judges,  it  is  said,  were  of  opinion  upon  the  authority  of  Rex 
V.  Waite,  that  this  bank-note  never  was  in  the  legal  custody  or  pos- 
session of  the  prosecutors,  Messrs.  Esdaile  and  Hammett ;  but  no 
opinion  was  ever  publicly  delivered  ;  and  the  prisoner  was  included  in 
the  Secretary  of  State's  letter  as  a  proper  object  for  a  pardon.^ 

1  The  argument  for  the  prisoner  npon  the  other  points,  and  that  for  the  Crown 
are  omitted. 

2  On  consiiltfition  among  the  judges,  some  doubt  was  at  first  entertained ;  but  at 
la.st  all  assembled  agreed  that  it  was  not  felony,  inasmuch  as  the  note  was  never  in  the 
possession  of  the  bankers,  distinct  from  the  possession  of  the  prisoner  •  though  it  would 
have  been  otherwise  if  the  prisoner  had  deposited  it  in  the  drawer,  and  had  afterwards 
taken  it.  { VIrle  Chipchase's  case,  Leach.  699.)  And  they  thought  that  this  was  not 
to  be  differed  from  the  cases  of  Rex  v.  Waite,  Leach,  28,  and  "Rex  v.  Bull,  Leach,  841, 
wliich  turned  on  this  consideration,  that  the  thing  was  not  taken  by  the  prisoner  out 
of  the  possession  of  the  owner;  and  here  it  was  delivered  into  the  possession  of  the 


SECT.  II.]  REX   V.    BASS.  531 


REX  V.   BASS. 
Crown  Case  Rksekved.     1782. 

[Iie/)OiUd  I.eiich,  4tfi  ed.,  '2:>\.] 

At  the  Old  Bailey,  in  May  Session,  1782,  William  Bass  was  convicted 
of  stealing  a  quantity  of  goods,  the  property  of  John  Gatfec. 

The  prisoner  was  servant  and  porter  in  the  general  employ  of  the 
prosecutor,  a  gauze  weaver  in  Bishopsgate  Street.  On  the  day  laid  in 
the  indictment  he  was  sent  with  a  package  of  goods  from  his  master's 
house,  with  directions  to  deliver  them  to  a  customer  at  a  particular 
place.  In  his  way  he  met  two  men,  who  invited  him  into  a  public 
house  to  drink  with  them,  and  then  persuaded  him  to  open  the  package 
and  sell  the  goods  to  a  person  whom  one  of  the  men  brought  in,  which 
lie  accordingly  did,  by  taking  them  out  of  the  package  and  i)utting 
them  into  the  man's  bag  ;  and  he  received  eight  guineas  of  the  produce 
to  his  own  use.^ 

It  was  referred  to  the  consideration  of  the  twelve  judges,  whether 
from  the  above  facts,  the   prisoner  was  guilty  of  a  felonious  taking. 

I\Ir.  Baron  Hotham,  in  December  Session,  1782,  delivered  it  as  the 
unanimous  opinion  of  all  the  judges,  that  the  conviction  was  proper ; 
for  the  prisoner  standing  in  the  relation  of  a  servant,  the  possession  of 
the  goods  must  be  considered  as  remaining  in  the  master  until  and 
at  the  time  of  the  unlawful  conversion  of  them  by  the  prisoner.  The 
master  was  to  receive  the  mone}'  for  them  from  the  customer,  and  he 
could  at  any  time  have  countermanded  the  delivery  of  them.  The 
prisoner,  therefore,  by  breaking  open  the  package,  tortiously  took  them 
from  the  possession  of  the  owner,  and  having  by  the  sale  converted 
them  animo  funriidl  to  his  own  use,  the  taking  is  felonious. 

Many  cases  of  this  kind  have  occurred,  and  all  of  them  have  been 
determined  to  be  felony. 

prisoner.  That  although  to  many  purposes  the  note  was  in  the  actual  possession  of 
tlie  masters,  yet  it  was  also  iu  the  actual  possession  of  the  servant,  and  that  possession 
not  to  be  impeached ;  for  it  was  a  lawful  one.  Etue,  C.  J.,  also  observed  that  the 
cases  ran  into  oire  another  very  much,  and  were  hardly  to  be  distinguished ;  that  in 
the  case  of  Rex  v.  Spears,  Leach,  825,  the  corn  was  in  the  possession  of  the  master 
under  the  care  of  the  servant :  and  Lokd  Kenton  said  that  he  relied  much  on  tlie  Ad 
of  Parliament  respecting  the  Bank  not  going  further  than  to  protect  the  Bank.  2  East, 
C.  L.  574.  — Rep. 

1  "  It  was  further  mentioned  as  an  additional  circumstance,  that  the  goods  were 
taken  out  of  the  package  in  which  they  had  been  delivered  to  the  prisoner,  and  put 
into  a  bag  at  the  public  house."    2  East  P.  C.  566.  —  Ed. 


532  REX  V.   LAVENDER.  [CHAP.  XIIL 


REX  V.   WATSON. 
Crown  Case  Reserved.     1788. 

[Reported  2  East  P.  C.  562.] 

William  Watson  was  tried  on  an  indictment  containing  three  counts  : 
the  first  stating,  that  the  prisoner,  as  a  servant,  received  £3  185.,  the 
money  of  E.  Cowper,  his  late  master,  \yhich  was  delivered  to  him  safel}' 
to  keep  to  the  use  of  his  said  master ;  and  that  afterwards  the  said 
prisoner  withdrew  himself  from  his  master  with  the  money,  with  an 
intent  to  steal  the  same,  and  to  defraud  his  said  master  thereof.  The 
second  count  stated  that  the  prisoner,  having  received  the  said  money 
in  the  manner  above  stated,  and  being  with  his  master,  had  converted 
the  same  to  his  own  use ;  and  both  concluded  against  the  form  of  the 
statute.  The  third  count  was  for  larceny  generally.  It  appeared  that 
Cowper,  who  was  a  surrogate,  had  sent  the  prisoner,  who  was  his  ser- 
vant, to  buy  some  blank  hcenses,  and  had  delivered  him  the  £3  18s. 
for  that  purpose  ;  but  the  prisoner  ran  away  with  the  money,  and  being 
convicted,  a  question  was  reserved  for  the  opinion  of  the  judges,  whether 
the  evidence  supported  any  of  the  counts.  And  in  Easter  Term,  1 788, 
all  the  judges  but  the  Chief  Baron  held  that  this  case  was  not  within 
the  statute,  for  to  keep  means  to  keep  for  the  use  of  the  master,  and  to 
return  to  him.  As  to  the  count  for  larceny,  all  the  judges  held  this 
could  not  be  felony  at  common  law ;  for  to  make  it  felony  there  must 
be  some  act  done  by  the  prisoner,  a  fraudulent  obtaining  of  the  posses- 
sion, with  intent  to  steal. 


REX  V.   LAVENDER. 
Crown  Case  Reserved.     1793. 

[Reported  2  East  P.  C.  566.] 

John  Lavender  was  indicted  for  larcen}'  at  common  law  of  a  certain 
sum  of  money  belonging  to  John  Edmonds.  The  prisoner  was  a  ser- 
vant to  Edmonds,  who  had  delivered  him  the  money  in  question  to 
carry  to  the  house  of  one  Thomas  Flawn,  and  there  to  leave  the  same 
with  him,  he  having  agreed  to  give  Edmonds  bills  for  the  money  in  a 
few  days.  The  prisoner  did  not  carry  the  money  to  Flawn  as  directed, 
but  went  away  with  it,  purchased  a  watch  and  other  things  with  part, 
and  part  remained  in  his  possession  when  he  was  apprehended.  Being 
found  guilty,  sentence  was  respited  for  the  opinion  of  the  judges, 
whether  this  were  a  felony  or  a  breach  of  trust ;  and  in  Easter  Term, 
1793,  all  the  judges  held  this  was  a  felonj-,  and  that  the  last  point  in 
Watson's  case  above  referred  to  was  not  law.     In  Trinity  Term  follow- 


SECT.  II.]  REGINA   V.   TOLLETT   AND   TAYLOR.  533 

ing  this  case  was  again  under  the  consideration  of  the  judges,  when 
they  adhered  to  their  former  opinion,  and  some  said  that  the  di.stinc- 
tion  between  this  case  and  Watson's,  if  there  were  any,  was,  that  in 
AVatson's  case  the  money  was  not  delivered  to  the  prisoner  to  be  paid 
specifically  to  any  other  person ;  but  if  the  prisoner  had  laid  out  his 
own  money  to  the  same  amount  in  buying  licenses,  it  would  have  been 
a  compliance  with  the  order.  He  was  commissioned  to  merchandise 
with  the  money.  But  they  admitted  that  tlie  distinction,  if  any,  was 
extremely  nice,  and  Bulleu,  J.,  thought  there  was  none,  and  recog- 
nized the  case  of  R.  v.  Paradice,  before  Gould,  J.,  as  good  law.^ 


REGINA   V.  TOLLETT  AND  TAYLOR. 
Oxford  Assizes.     1841. 

[Reported  Carrington  Sj-  Marshman,  112.] 

Coleridge,  J.*  (in  summing  up).  There  is  no  doubt  that  the  prop- 
erty found  in  the  possession  of  the  prisoner  at  Abingdon  was  the 
property  of  the  prosecutor  Henry  Eltham,  and  that  it  was  taken  from 
his  house  on  the  night  of  Saturday,  the  31st  of  October,  and  that  it 
was  found  at  Abingdon  in  the  same  state  in  which  it  was  taken ;  and 
it  seems  also  to  be  clear  that  neither  of  the  prisoners  was  in  possession 
of  the  keys  which  unlocked  the  boxes.  With  respect  to  the  prisoner 
ToUett,  I  think  that  the  evidence  is  insufficient  to  aflfect  him  as  a  prin- 
cipal. The  evidence,  as  it  affects  the  other  prisoner,  is  therefore  that 
which  you  will  principally  have  to  attend  to.  It  is  proved  by  the 
prosecutor,  that  he  and  his  wife  had  been  upon  bad  terms,  and  that 
she  had  threatened  to  leave  him  and  go  to  service  ;  and  the  wife  herself 
says  that  she  twice  met  the  prisoner  Taylor  at  Mrs.  Hayward's,  which 
she  does  not  know  to  be  a  house  of  ill  fame,  and  there  arranged  with 
the  prisoner  Taylor  that  she  should  elope  with  him,  and  that  they 
should  live  at  Gloucester  as  man  and  wife.  She  saj-s  that  on  these 
two  occasions  she  was  with  the  prisoner  in  a  bedroom  for  half  an  hour 
each  time,  but  that  nothing  improper  passed  between  them  ;  she  also 
says  that  the  prisoner  Taylor  desired  her  to  bring  all  the  money  she 
could,  and  that  she  was  to  get  the  money  and  the  boxes  ready  on  the 
Saturday  night,  and  he  would  come  for  them  and  take  her  away  witii 
him  also.  She  further  states  that  she  sat  up  after  her  husband  had 
gone  to  bed,  in  expectation  of  his  coming ;  that  he  did  come,  and  that 
she  took  him  into  the  room  in  which  her  husband  was  asleep,  and 
that  he  took  the  boxes  away  in  the  cart  of  the  other  prisoner,  Tollett, 
and  that  if  her  husband  had  remained  asleep  she  would  have  gone  ot! 

1  Ace.  State  v.  Schingen,  20  Wis.  74. —  Ed. 

'^  The  charge  only  is  given  ;  it  s-ufficiently  states  the  case. 


534  REGINA  V.   TOLLETT   AND   TAYLOR.  [CHAP.  XIIL 

M-ith  the  prisoner  Taylor ;  but  as  her  husband  awoke  she  was  obhged 
to  stav,  and  she  gave  information  which  led  to  the  apprehension  of  the 
prisoners  at  Abingdon.  Now,  b}-  law  there  is  such  a  unit}'  of  interest 
between  husband  and  wife,  that  ordinaril}-  the  wife  cannot  steal  the 
goods  of  the  husband,  nor  can  an  indifferent  person  steal  the  goods  of 
the  husband  by  the  delivery  of  them  by  the  wife.  If,  therefore,  the 
prisoner  Taylor  had  been  an  indifferent  person,  and  the  wife  of  the 
prosecutor  had  delivered  this  money  and  these  goods  to  him  to  convert 
to  his  own  use,  that  would  in  point  of  law  have  been  no  larceny.^  But 
if  the  pei'son  to  whom  the  goods  are  delivered  by  the  wife  be  an  adul- 
terer, it  is  otherwise,  and  un  adulterer  can  be  properly  convicted  of 
stealing  the  husband's  goods,  though  they  be  delivered  to  him  by  the 
wife.  On  this  evidence,  it  does  not  appear  that  the  criminal  purpose 
had  been  carried  into  effect ;  but  if  that  criminal  purpose  had  not  been 
completed,  and  these  goods  were  removed  b}-  the  wife  and  the  prisoner 
Taylor  with  an  intent  that  she  should  elope  with  him  and  live  in  adul- 
tery with  him,  I  shall  direct  you  in  point  of  law  that  the  taking  of  them 
was  a  larceny.  Mr.  Carrington  has  said  that  if  the  wife  eloped  with 
an  adulterer,  it  would  be  no  larcen}-  in  the  adulterer  to  assist  in  carry- 
ing away  her  clothes.  I  do  not  agree  with  him,  for  I  think  that  if  she 
elopes  with  an  adulterer,  who  takes  her  clothes  with  them  it  is  larceny 
to  steal  her  clothes,  which  are  her  husband's  property,  just  as  much  as 
it  would  be  a  larceny  to  steal  her  husband's  wearing  apparel,  or  any- 
thing else  that  was  his  property.  However,  the  evidence  in  this  case 
goes  further  than  that ;  for  it  is  proved  that  the  prisoner  told  her  to 
bring  with  her  all  the  money  that  she  could,  and  a  sum  of  money  is 
contained  in  one  of  the  boxes.  Mr.  Carrington  also  contends  that, 
except  on  the  evidence  of  the  wife,  there  is  no  proof  that  the  prisoner 
Taylor  was  anything  more  than  a  friend  ;  and  if  there  was  a  larceny  in 
the  steaUng  of  these  goods,  the  wife  is  an  accomplice,  and  requires  con- 
firmation. Taking  that  to  be  so,  we  find  that  she  is  confirmed  as  to  all 
the  main  facts  of  the  case  ;  and  she  certainly  appears  to  have  no  motive 
to  ])lacken  her  own  character;  and  it  seems  reasonable,  therefore,  to 
believe  her  as  to  the  criminal  intention  on  her  part.  Mr.  Carrington 
also  says  that  the  conduct  of  the  two  prisoners  was  not  that  of  thieves, 
as  they  stayed  at  Abingdon,  where  they  were  known  ;  and  that  certainly 
ought  to  weigh  in  favor  of  the  prisoners.  It  is  also  said  that  they  did 
not  break  bulk  ;  but  I  think  that  that  does  not  amount  to  much,  because, 
if  the  scheme  was  for  the  wife  of  the  prosecutor  to  live  with  the  prisoner 
Taylor  at  Gloucester,  there  would  be  no  object  in  opening  the  boxes  at 
Abingdon.  It  is  further  said  that  Taylor  did  not  know  what  was  in 
the  boxes.  However,  if  a  man  take  away  any  property  at  all  belonging 
to  another,  having  arranged  to  elope  with  the  wife  of  that  other,  and 
having  told  the  wife  to  bring  all  the  money  she  could,  it  will  be  for  you 
to  say  whether  he  did  not  intend  to  steal  the  property  thus  taken  away, 

1  Ace.  Lamphier  v.  State,  70  Iiul.  317,  semhle.  —  Ed. 


SECT.  II.]  REGINA   V.   NORVAL.  635 

though  he  might  not  at  the  time  of  the  taking  know  exactly  of  what  the 
property  consisted.  If  you  are  satisfied  that  the  prisoner  Taylor  took 
any  of  the  husband's  property,  there  then  being  a  criminal  intention,  or 
there  having  been  a  criminal  act  between  that  prisoner  and  the  wife,  it 
is  a  larceny,  and  you  ought  to  find  the  prisoner  guilty  ;  but  if  you  think 
that  the  prisoner  took  away  the  boxes  merely  to  get  the  wife  away  as  a 
friend  only,  and  without  any  reference  to  an}'  criminal  connection  be- 
tween the  prisoner  and  the  wife,  either  actual  or  intended,  you  ought  to 
acquit  him. 
The  jury  found  the  prisoner  Taylor  guilty,  and  the  prisoner  ToUett 


not  guilty.^ 


^ 


^ 


jj       T  REGINA  V.   NORVAL. 

'-^    vX  '  v^  Central  Criminal  Court.     1844. 

'^     '^         "^  [Reported  1  Cox  C.  C.  95.] 

The  prisoners  were  indicted  for  feloniousl}'  stealing  certain  deer- 
horns,  the  property  of  one  Kirkman. 

It  appeared  in  evidence  that  the  prisoner  .Jforval  was  in  the  employ 
of  Kirkman,  who  was  a  carman.  The  goods  in  question  were  lying  in 
the  docks,  and  the  owner  delivered  to  Kirkman  the  dock  warrants,  in 
order  that  he  might  receive  tliem  and  cart  them  up  to  town.  Kirkman 
accordingly  gave  the  warrants  to  the  prisoner  Norval,  with  the  neces- 
sary instructions,  and  he  (Norval)  went  with  a  cart  to  the  docks,  the 
deer-horns  were  put  into  it,  and  on  the  passage  back  to  London  several 
of  them  were  abstracted,  Norval  colluding  with  the  other  prisoner  for 
that  purpose. 

Ballantine,  for  the  prisoner  Norval,  contended,  that  upon  this  state 
of  facts  the  charge  should  have  been  one  of  embezzlement  as  against 
him,  and  not  one  of  felony.  The  goods  had  never  been  in  the  master's 
possession.  The  prisoner  obtained  them  lawfulh'  in  the  first  instance, 
so  that  there  could  be  no  tortious  taking,  which  was  an  essential  ingre- 
dient in  the  proof  of  felony. 

Mr.  Commissioner  Bullock  consented  to  reserve  the  point,  and  the 
prisoner  was  convicted. 

The  learned  commissioner  subsequenth*  stated  that  he  had  consulted 
Mr.  Baron  Gukney  on  the  subject,  who  was  of  opinion  that  the  con- 
viction was  proper.  True  it  is  that  the  making  away  by  a  servant  with 
goods  that  have  never  been  in  the  possession  of  the  master,  is  embez- 
zlement; but  here  there  is  a  constructive  possession,  and  that  accrued 
at  the  moment  when  the  goods  were  placed  in  the  master's  cart. 

1  Ace.  Rex  V.  Willis,  1  Moody  C.  C.  375 ;  Reg.  v.  Glassie,  7  Cox  C.  C.  1  ;  Reg.  v 
Kenny,  13  Cox  C.  C.  397  ;  People  v.  Schuyler,  6  Cow.  572.  —  Ed. 


536  EEGINA   V.   REED.  [CHAP.  XIIL 


REGIXA  V.   REED. 
Crown  Case  Reserved.     1853. 

[Reported  6  Cox  C.  C.  284.] 

The  following  case  was  reserved  by  the  Court  of  Quarter  Sessions 
for  the  count}'  of  Kent. 

At  the  General  Quarter  Sessions  of  the  Peace  for  the  county  of  Kent, 
holden  at  Maidstone,  on  the  4th  January,  1853,  before  Aretus  Akers, 
Edward  Burton,  and  James  Espinasse,  Esqrs.,  justices  appointed  to  try 
prisoners  in  a  separate  court,  Abraham  Reed  was  tried  upon  an  idict- 
luent  for  feloniously  stealing  200  lbs.  weight  of  coals,  the  property  of 
William  Newton,  his  master,  on  the  6th  December,  1852  ;  and  James 
Peerless  was  charged  in  the  same  indictment  with  receiving  the  coals, 
knowing  the  same  to  have  been  stolen,  and  was  acquitted. 

The  evidence  of  the  prosecutor,  William  Newton,  was  as  follows :  — 
"  I  am  a  grocer  and  miller,  at  Cowden,  and  sell  coals  by  retail.  The 
prisoner,  Reed,  entered  my  service  last  year,  about  three  weeks  before 
the  6th  December.  On  that  day  I  gave  him  directions  to  go  to  a  cus- 
tomer to  take  some  flour,  and  thence  to  the  station  at  Edenbridge,  for 
12cwt.  of  coals.  I  deal  with  the  Medway  Company,  who  have  a  wharf 
there,  Holman  being  wharfinger.  I  told  Reed  to  bring  the  coals  to  my 
house.  Peerless  lives  about  500  yards  out  of  the  road  from  the  station 
to  my  house.  Reed  went  about  nine  a.m.,  and  ought  to  have  come 
back  between  three  and  four  p.  m.  ;  but  as  he  had  not  come  back,  I 
went  in  search  of  him  at  half-past  six,  and  found  him  at  Peerless's. 
The  cart  was  standing  in  the  road  opposite  the  house,  and  the  two 
prisoners  were  taking  coals  from  the  cart  in  a  truck  basket.  It  was 
dark.  I  asked  Reed  what  business  he  had  there  ;  he  said,  '  to  deliver 
half  a  hundredweight  for  which  he  had  received  an  order  from  Peer- 
less.' Reed  had  never  before  told  me  of  such  an  order,  and  had  no 
authority  from  me  to  sell  coals.  Later  that  evening  I  went  and  asked 
Peerless  what  coals  he  had  received  from  my  cart ;  he  said,  half  a  hun- 
dredweight. I  then  asked  him  how  they  were  carried  from  the  cart ; 
he  said,  in  a  sack.  I  weighed  the  coals  when  brought  home,  and  found 
the  quantity  so  brought  a  quarter  of  a  hundredweight  and  four  pounds 
short.  I  went  to  Peerless's  next  day  and  found  some  coals  there, 
apparently  from  half  to  three  quarters  of  a  hundredweight."  Upon  his 
cross-examination  he  stated  as  follows :  "I  believe  Peerless  had  some- 
times had  coals  from  me.  When  I  came  up  they  were  shutting  the  tail 
of  the  cart,  but  some  coals  were  in  a  truck-basket  at  their  feet.  Reed 
said  at  once  that  he  had  received  an  order  from  Peerless.  It  was  two 
hours  later  when  I  asked  Peerless,  and  when  he  said  he  had  ordered 
them.  Reed  said  he  had  carried  two  hundredweight  in,  but  that  was 
two  hours  after."  On  his  re-examination  he  said:  "I  think  Peerless 
had  had  some  coals  from  me  about  a  fortnight  before  the  6th."     James 


SECT.  II.]  REGINA   V.   REED.  537 

Ilolmiin,  another  witness  for  the  prosecution,  said  :  "  I  am  wharfinger 
to  the  Medway  Company,  at  the  Kdenbridge  station,  and  Newton  deals 
there  for  coals.  Keed  can)e  on  the  Gth  December,  and  asl<ed  for  half  a 
ton  for  Newton,  and  I  supplied  hinu  I  entered  them  at  the  time  to 
Newton,  and  now  produce  the  book  with  the  entry."  James  Handley, 
another  witness  for  the  prosecution,  said,  "  I  am  superintendent  of  the 
Sevenoaks  division.  On  the  7th  December,  I  went  to  Peerk'ss'-s,  and 
asked  him  how  much  coals  he  had  received  from  Keed  ;  he  said  he  had 
ordered  half  a  hundredweight  three  weeks  before  ;  Reed,  when  I  asked 
him  afterwards,  said,  three  days  before ;  Reed  said  he  had  received 
two  glasses  of  wine  from  Peerless."  On  his  cross-examination,  he 
said,  ''This  was  about  four  p.m.,  7th  December."  Newton  was  then 
re-examined  and  said  :  "  Reed  came  to  me  in  the  morning  of  the  7th  ; 
I  told  him  23  cwts.  were  missing.  He  then  said  one  sack  had  been 
left  at  the  wharf  by  mistake  ;  I  therefore  charged  him  with  only  three- 
quarters  of  a  hundredweight."  Holman,  upon  re-examination,  said  : 
"  Reed  left  a  sack  behind  him  ;  but  it  was  an  empty  one."  This  being 
the  case  for  the  prosecution,  Mr.  Ribton,  counsel  for  the  prisoner,  sub- 
mitted that  there  was  no  case  to  go  to  the  jury  on  the  charge  of  larcenj-, 
inasmuch  as  the  coals  left  at  Pc^erlessjs  had  never  been  in  the  possession 
of  Newton,  the  master.     Mr.  Rose,  counsel  on  the  part  of  the  prosecu- 

(  tion,  contended  that  the  coals  were  constructively  in  the  possession  of 
Newton,  and  that  the  offence  was  properly  charged  as  larceny  ;  but  that, 

(  under  the  provisions  of  the  act  14  &  15  Vict.  c.  100,  s.  13,  it  was  imma- 
terial whether  the  offence  were  larceny  or  embezzlement,  as  the  jury 
might  find  a  verdict  either  for  larcenj-  or  embezzlement.  Mr.  Ribton 
then  proposed  that  it  should  be  left  to  the  jury  as  a  charge  of  embezzle- 
ment ;  but  to  this  Mr.  Rose  objected,  on  the  ground  that  the  receiver 
must  then  be  acquitted.  The  court  were  of  opinion  that  there  was  a 
constructive  possession  in  the  master,  and  left  the  case  to  the  jury  as  a 
case  of  larceny  upon  the  evidence,  who  thereupon  found  the  prisoner, 
Abraham  Reed,  guilty.  Mr.  Ribton  then  applied  to  the  court  to  sub- 
mit the  case  to  the  Court  of  Criminal  Appeal,  contending  that  the 
conviction  was  wrong  in  law  ;  as,  if  any  offence  had  been  committed,  it 
was  embezzlement,  and  not  larcen}'.  The  court  acceded  to  the  appli- 
cation, and  respited  judgment,  and  discharged  Reed,  upon  his  entering 
into  recognizances  —  himself  in  £20,  and  one  surety  in  £20  —  to  receive 
judgment  at  the  next  Court  of  Quarter  Sessions  for  Kent. 

This  case  was  first  argued  on  the  23d  April,  1853,  before  Jervis, 
C.  J.,  Parke,  B.,  Alderson,  B.,  Wightman,  J.,  and  Cresswell,  J., 
when  the  court  took  time  to  consider  their  judgment.  The  court 
afterwards  directed  that  the  case  should  be  argued  before  all  the  judges  ; 
and,  in  pursuance  of  that  direction,  the  case  was  again  heard  on  the 
19th  November,  1853. 

Ribton,  for  the  prisoners.  The  conviction  is  wrong.  To  constitute 
larceny  there  must,  according  to  all  the  definitions  of  that  offence,  bt-  a 
taking  from  the  possession  of  the  owner.     Formerly,  it  was  supposed 


533  REGINA  V.  REED.  [CHAP.  XIII. 

that  the  taking  must  be  out  of  the  actual  possession  of  the  owner,  as 
ai)pears  by  the  recital  of  the  earliest  P^mbezzlement  Act  (21  Hen.  VIII. 
c.  7),  which  was  passed  to  provide  for  the  punishment  of  servants  con- 
verting goods  or  money  entrusted  to  their  keeping  by  their  masters 
(Dalton's  Country  Justice,  49G) ;  but  it  is  now  settled  that  the  posses- 
sion may  be  either  actual  or  constructive.  In  either  case  the  taking 
constitutes  a  trespass,  which  is  essential  to  larceny.  Constructive  pos- 
session is  of  two  kinds :  first,  where  property  has  been  given  by  the 
master  to  the  servant  for  a  special  purpose,  or  is  put  under  the  ser- 
vant's charge  or  custody  ;  secondly,  where  a  third  person  has  given 
goods  to  the  servant,  and  the  servant  has  determined  his  own  exclusive 
possession  by  some  act  which  vests  the  possession  in  the  master.  The 
constructive  possession  in  this  case,  if  anj^,  was  of  the  second  kind  ;  but 
there  was,  in  truth,  no  possession  by  the  master  at  all. 

Parke,  B.  If  the  goods  were  the  property  of  the  master  before  the 
delivery  of  them  to  the  servant,  any  act  whereby  they  are  reduced  into 
the  master's  possession  is  sufficient. 

Eibton.  Yes  ;  but  not  a  mere  right  to  the  actual  possession.  The 
criterion  is,  whether  the  goods  have  reached  the  place  of  their  ultimate 
destination  ?  The  distinction  is  between  the  actual  possession  and  the 
right  to  the  actual  possession.  In  Waite's  case  (1  Leach,  28  ;  2  East 
P.  C.  570),  a  cashier  of  the  Bank  of  England  abstracted  an  India  bond  ; 
but,  as  the  bond  had  not  been  previously  placed  by  him  in  the  cellar  of 
the  bank,  the  place  of  its  ultimate  destination,  the  act  was  held  to  be 
not  one  of  larceny.  So,  in  the  present  case,  the  act  is  not  one  of  lar- 
ceny, because  the  coals,  though  the  master  had  a  right  to  the  possession 
of  them,  had  not  reached  the  place  of  their  final  deposit.  In  R.  v. 
Bazeley  (2  Leach,  835  ;  2  East  P.  C.  571),  money  was  received  by  a 
banker's  clerk  at  the  counter,  and,  instead  of  putting  it  into  the  proper 
drawer,  he  purloined  it ;  and  that  was  held  not  to  be  larceny,  because  as 
against  him  there  was  no  possession  by  the  master.  [Lord  Campbell, 
C.  J.  —  On  the  former  argument,  my  brother  Parke  suggested  that  that 
was  money,  the  subject  of  account.  Platt,  B.  —  Suppose  it  to  be  the 
duty  of  the  clerk  to  put  the  money  into  a  drawer  and  lock  it  up,  must 
the  drawer  be  pushed  home  and  locked  up  before  the  money  has  got 
into  the  possession  of  the  master?]  The  drawer  on  the  premises  of  the 
master  is  the  ultimate  place  of  deposit.  [Lord  Campbell,  C.  J.  —  Sup- 
pose that  the  servant  leaves  the  horse  and  cart  on  the  road  ;  has  he  then 
determined  his  duty,  so  that  if  he  comes  back  he  may  steal  them?]  If 
he  had,  it  would  be  embezzlement.  R.  v.  Bull,  2  Leach,  841  ;  R.  v. 
Poorer,  cited  in  R.  v.  Meeres,  1  Show.  50 ;  R.  v.  Walsh,  4  Taunt. 
258,  276;  R.  &  R.  215;  2  East  P.  C.  177;  and  R.  v.  Spears  there 
cited.  [Lord  Campbell,  C.  J.  — In  the  report  in  4  Taunt.  276, 
Heath,  J.,  says,  "  That  case  went  upon  the  ground  that  the  corn  was 
in  the  prosecutor's  barges,  which  M^as  the  same  thing  as  if  it  had  been 
in  his  granary."]  The  report  in  East  is  not  so.  He  also  cited  R.  y. 
Sullens,  1  Moo.  C.  C.  129,  and  R.  v.  Masters,  3  Cox  Crim.  Cas.  178; 


SECT.  II.]  REGINA   V.   REED.  539 

1  Den.  332.  [Pollock,  C.  R.  —  Suppose  lie  had  bad  to  take  the  conls 
to  a  customer  at  once.  How  would  it  he  tlien?  In  respect  to  the 
master,  the  cart  would  ])o  tlic  final  place  of  deposit.]  The  customer's 
house  would  have  been  the  final  place  of  deposit.  [Lord  Camimjkll, 
C.  J.  —  How  do  you  define  the  place  of  final  deposit?]  That  depends 
on  the  particular  circumstances  of  each  case.  In  this  one,  for  instance, 
it.  is  the  house  of  the  master.  [Lord  Ca.mpbkll,  C.  J.  —  When  the 
coals  passed  the  threshold,  or  the  cart  passed  the  gate?  A  farm-house 
is  at  the  extremity  of  a  field ;  does  the  consti-uctive  possession  cease  at 
the  gate  of  the  field,  or  at  the  door  of  the  house  ?  Platt,  H.  —  The  cart 
was  in  the  possession  of  the_aBaster.  If  he  had  taken  that,  It  would 
have  been  larceny.  Pauki:,  B.  — The  cart  is  but  the  means  of  transit  to 
the  master's  house,  which  was  the  ultimate  place  of  destination.]  In  / 
R.  V.  Hay  ward  (1  Car.  «fe  K.  518)  straw  thrown  down  at  a  stable  door 
was  considered  to  have  reached  a  place  of  final  deposit.  If  a  banker's 
clerk  collects  bills,  puts  them  into  his  pocket,  and  abstracts  one,  the 
property  of  his  master,  which  he  afterwards  converts  to  his  own  use, 
that  is  embezzlement,  not  larceny.  [Jekvis,  C.  J.  —  How  do  you  distin-  ; 
guish  the  cases  of  R.  v.  Spears  and  R.  v.  Abrahat  (2  Leach,  828)  ? 
Lord  Campbell,  C.  J. — R.  v.  Spears  is  on  all-fours  with  this  case. 
Parke,  B.  — In  R.  v.  Spears  it  is  uncertain,  looking  at  the  reports  in 
East  and  Leach,  and  the  difference  between  the  two  editions  of  Leach, 
whether  the  judgment  did  not  turn  on  the  fact  that  the  master  had 
bought  the  whole  cargo.]  In  that  case  the  master  would  have  had  a 
title  and  constructive  possession  before  delivery  to  the  prisoner. 

Hose,  contra.  The  act  of  the  prisoner  was  an  offence  at  common 
law.  The  embezzlement  statutes  are  affirmative,  and,  so  soon  as  a 
trespass  is  proved,  a  larceny  is  established.  There  was  a  trespass  in  this 
case ;  for,  as  the  coals  were  asked  for  in  the  master's  name,  charged  to 
the  master  in  the  bill,  put  into  the  master's  sacks,  and  the  sacks  put 
into  the  master's  cart,  the  master  had  constructive  possession  before 
the  servant  had  actual  exclusive  possession.  Com.  Dig.  "Trespass," 
B.  4.  [Lord  Campbell,  C.  J.  —  The  constructive  possession  of  the 
master  need  not  be  distinct  from  the  actual  possession  of  the  servant.] 
What  act  before  the  taking  in  this  case  divested  the  master  of  his  con- 
structive possession?  Robinson's  case  (2  East  P.  C.  5G5),  Paradice's 
case  (ib.),  proceed  on  the  principle  that,  despite  the  manual  possession 
of  the  servant,  the  constructive  possession  is  in  the  master.  So,  if  the 
servant  had  left  the  cart  and  coals,  had  returned  suddenly  in  the  night, 
and  had  taken  the  coals,  would  he  not  have  l^een  guilty  of  stealing  his 
master's  property?  The  case  of  R.  r.  Spears  is  not  to  be  distinguished 
from  this.  In  commenting  on  Waite's  case  and  Bazeley's  case,  East 
reconciles  them  by  saying  that  there  is  no  constructive  possession  with- 
out the  possession  of  the  servant.  In  R.  v.  Bull  the  case  was  one  of 
money,  which  constitutes  matter  of  account,  and  trespass  would  not 
lie.  Higgs  V.  Holliday,  Cro.  Eliz.  746.  This  is  not  like  the  case  of  a 
gift  to  the  master,  where  he  never  gets  possession  until  delivery  to  the 


540  REGINA  V.    REED.  [CHAP.  XIIL 

servant.  [Lord  Campbell,  C.  J.  —  Spears'  ease  is  to  be  taken  from 
the  second  edition  of  Leacti,  as  is  shown  by  Heath,  J.,  in  4  Taunt. 
276.  Parke,  B.  —  If  we  take  it  from  Abrahat's  case,  the  corn  was 
clearly  purchased  by  the  master  before.]  Suppose  that  another  servant 
had  been  sent ;  that  he  had  delivered  the  order  ;  that  the  coals  had  been 
weighed  out ;  and  that  the  prisoner  had  then  been  sent  with  the  cart  for 
the  coals,  and  had  stolen  some  of  them,  —  that  must  have  been  larceny-. 
In  R.  V.  Harding  (R.  &  R.  125)  property  which  the  prosecutor  had 
bought  was  weighed  out  in  the  presence  of  his  clerk,  and  delivered  to 
the  carter's  servant  to  cart,  and  a  fi'audulent  conversion  b}'  the  carman 
was  held  larceny. 

Ribton^  in  reply.  In  R.  v.  Harding  the  property  had  been  in  the 
actual  possession  of  the  master.  In  R.  v.  Watts  (2  Den.  C.  C.  14),  the 
defendant  divested  himself  of  possession  in  favor,  so  to  say,  of  his 
employers.  In  this  case  the  prisoner  has  not  so  divested  himself  by 
any  distinct  act.  In  R.  v  Watts,  the  distinct  act  was  the  receipt  had 
of  the  cheque  by  the  prisoner ;  it  being  his  dut}'  to  his  employers  to 
receive  it.  In  this  case  the  coals  had  not  reached  their  final  destina- 
tion. Ciir.  adv.  vult. 

Lord  Campbell,  C.  J.  There  lies  before  me  a  judgment  that  I  had 
prepared  for  myself  at  a  time  when  there  was  reason  to  suppose  that 
there  might  be  one,  if  not  more  dissenting  judges.  I  have  reason  to 
believe  now  that  there  will  not  be  any  dissent ;  but  still  this  judgment 
must  be  considered  only  as  embodying  the  reasons  I  give  for  my 
opinion,  because  I  have  no  authority  to  say  that  my  brothers  concur  in 
that  opinion,  and  the  reasons  for  it.  For  convenience,  I  have  written 
my  judgment,  and  my  learned  brothers  will  saj'  how  far  they  concur  or 
dissent.  I  am  of  opinion  that  the  prisoner  has  been  properly  convicted 
of  larceny.  There  can  be  no  doubt  that,  in  such  a  case,  the  goods 
must  have  been  in  the  actual  or  the  constructive  possession  of  the  mas- 
ter ;  and  that,  if  the  master  had  no  otherwise  the  possession  of  them 
than  by  the  bare  receipt  of  his  servant  upon  the  delivery  of  another  for 
the  master's  use,  although  as  against  third  persons  this  is  in  law  a 
receipt  of  the  goods  b}'  the  master,  yet  in  respect  of  the  servant  himself 
this  will  not  support  a  charge  of  larceny,  because  as  to  him  there  was 
no  tortious  taking  in  the  first  instance,  and  consequentlj'  no  trespass. 
Therefore,  if  there  had  been  a  quantity'  of  coals  delivered  to  the  pris- 
oner for  the  prosecutor,  and  the  prisoner,  having  remained  in  the 
personal  possession  of  them,  as  by  carr^-ing  them  on  his  back  in  a 
bag,  without  anything  having  been  done  to  determine  his  original  ex- 
clusive possession,  had  converted  them  animo  furandi^  he  would  have 
been  guilty  of  embezzlement,  and  not  of  larceny.  But  if  the  servant 
has  done  anything  which  determines  his  original  exclusive  possession 
of  the  goods,  so  that  the  master  thereby  comes  constructively  into 
possession,  and  the  servant  afterwards  converts  them  animo  furandi^ 
he  is  guilty  of  larceny,  and  not  merely  of  a  breach  of  trust  at  common 


SECT.  II.]  REGINA   V.   REED.  541 

law,  or  of  embezzlement  under  the  statute.  On  this  supposition  he 
subsequently  takes  the  goods  tortiously  in  converting  tliem,  and  com- 
mits a  trespass.  We  have  therefore  to  consider  whether  the  exclusive 
possession  of  the  coals  continued  with  the  prisoner  down  to  the  time 
of  the  conversion.  I  am  of  opinion  that  this  exclusive  possession 
was  determined  when  the  coals  were  deposited  in  the  prosecutor's 
cart,  in  the  same  manner  as  if  thej-  had  been  deposited  in  the  prose- 
cutor's cellar,  of  which  the  prisoner  had  the  charge.  The  prosecutor 
was  undoubtedly  in  possession  of  the  cart  at  the  time  when  the  coals 
were  deposited  in  it ;  and  if  the  prisoner  had  carried  off  the  cart  animo 
furandi,  he  would  have  been  guilty  of  larceny.  That  is  expressly 
determined  in  Robinson's  case  (2  P^ast,  565).  There  seems  considera- 
ble difficulty  in  contending  that,  if  the  master  was  in  possession  of  the 
cart,  he  was  not  in  possession  of  the  coals  which  it  contained,  tlie  coals 
being  his  property,  and  deposited  there  by  his  order,  for  his  use.  Mr. 
Ribton  argued  that  the  goods  received  b}^  a  servant  for  his  master 
remain  in  the  exclusive  possession  of  the  servant  till  they  have  reached 
their  ultimate  destination.  But  he  was  unable,  notwithstanding  his 
learning  and  ingenuity,  to  give  any  definition  of  "  ultimate  destination," 
when  so  used.  He  admitted  that  the  master's  constructive  possession 
would  begin  before  the  coals  were  deposited  in  the  cellar,  when  the  cart 
containing  the  coals  had  stopped  at  his  door,  and  even  when  it  had 
entered  his  gate.  But  I  consider  the  point  of  time  to  be  regarded  is 
that  when  the  coals  were  deposited  in  the  cart.  Thenceforth  the  pris- 
oner had  only  the  custody  or  charge  of  the  coals,  as  a  butler  has  of  his 
master's  plate,  or  a  groom  has  of  his  master's  horse.  To  this  conclu- 
sion, with  the  most  sincere  deference  to  any  of  my  learned  brothers 
who  may  at  any  time  have  taken  a  different  view,  —  to  this  conclusion 
I  should  have  come  on  principle ;  and  I  think  that  Spears'  case  is  an 
express  authority  for  it.  The  following  is  an  exact  copy  of  the  state- 
ment of  that  case,  signed  by  Buller,  J.,  in  pp.  181,  182,  and  183  of  the 
2d  volume  of  the  Black  Book,  containing  the  decisions  of  the  judges  in 
Crown  cases,  deposited  with  the  Chief  Justice  of  the  Queen's  Bench  for 
the  time  being  :  "  John  Spears  was  convicted  before  me  at  Kingston, 
for  stealing  forty  bushels  of  oats  of  James  Broune  «fe  Co.  in  a  barge  on 
the  Thames.  Broune  &  Co.  sent  the  prisoner  with  their  barge  to  Wil- 
son, a  corn  meter,  for  as  much  oats  only  as  the  barge  would  carr}-, 
and  which  were  to  be  brought  in  loose  bulk.  The  prisoner  received 
from  Wilson  220  quarters  in  loose  bulk,  and  five  quarters  in  sacks  ;  the 
prisoner  ordering  that  quantity-  to  be  put  into  sacks.  The  quantity  in 
the  sacks  was  afterwards  embezzled  by  the  prisoner ;  and  the  question 
reserved  for  the  opinion  of  the  judges  is,  whether  this  was  felony,  the 
oats  never  having  been  in  the  possession  of  the  prosecutor ;  or  wliether 
it  was  not  like  the  case  of  a  servant  receiving  change  or  buying  a  thing 
for  his  master,  but  never  delivering  it."  Then  there  is  a  reference  made 
to  Dy.  5,  and  1  Show.  52  ;  and  then  this  is  signed  by  Sir  J.  Buller ;  and 
then  is  added,  "  25th  April,  1798.     Conviction  affirmed."     Now  that 


542  REGINA   V.    REED.  [CHAr.  XIIL 

is  au  exact  copy  from  the  Black  Book,  In  that  case  the  question  arose 
whether  the  corn,  while  in  the  prosecutor's  barge,  in  which  it  was  to  be 
brought  by  the  prisoner  to  the  prosecutor's  granary,  was  to  be  consid- 
ered in  the  possession  of  the  prosecutor ;  and  the  judges  unanimously 
held,  that  from  the  time  of  its  being  put  into  the  barge  it  was  in  the 
prosecutor's  possession,  although  the  prisoner  had  the  custody  or  charge 
of  it.  That  case  has  been  met  at  the  bar  by  a  suggestion  that  the 
whole  cargo  of  corn,  of  which  the  quantity  put  on  board  this  barge  was 
a  part,  was  or  might  have  been  purchased  by  the  prosecutor,  so  that  he 
might  have  had  a  title  and  constructive  possession  before  the  delivery 
to  the  prisoner.  But  the  very  statement  of  the  case  in  the  Black  Book, 
and  the  authorities  referred  to,  show  that  the  judges  turned  their  atten- 
tion to  the  question  whether  the  exclusive  possession  of  the  servant  had 
not  been  determined  before  conversion ;  and  during  the  argument  of 
Rex  V.  Walsh  (4  Taunt.  276)  we  have  the  ratio  decidendi  in  Spears' 
case  explicitly  stated  by  one  of  the  judges  who  concurred  in  the 
decision  :  "  Heath,  J.  —  That  case  went  upon  the  ground  that  the  corn 
was  in  the  prosecutor's  barge,  which  was  the  same  thing  as  if  it  had 
been  in  his  granary."  Read  "  cart "  for  "  barge,"  "  coals  "  for  "  corn," 
and  "cellar"  for  "granary,"  and  the  two  cases  are  for  this  purpose 
preciseh'  the  same.  There  is  no  conflicting  authority ;  for  in  all  the 
cases  relied  upon  by  Mr.  Ribton,  the  exclusive  personal  possession  of 
the  prisoner  had  continued  down  to  the  time  of  the  wrongful  conver- 
sion. It  is  said  there  is  great  subtlety  in  giving  such  an  effect  to  the 
deposit  of  the  coals  in  the  prosecutor's  cart ;  but  the  objection  rests  on 
a  subtlety  wholly  unconnected  with  the  moral  guilt  of  the  prisoner,  for 
as  to  that  it  must  be  quite  immaterial  whether  the  property  in  the  coals 
had  or  had  not  vested  in  the  prosecutor  prior  to  the  time  when  they 
were  delivered  to  the  prisoner.  We  are  to  determine  whether  this 
would  have  been  a  case  of  larceny  at  common  law  before  there  was  any 
statute  against  embezzlement ;  and  I  do  not  think  that  there  would  have 
been  any  reproach  to  the  administration  of  justice  in  holding  that  the 
subtlety  arising  from  the  prosecutor  having  had  no  property  in  the  sub- 
ject of  the  larceny  before  its  delivery  to  the  prisoner,  who  stole  it,  was 
sufficiently  answered  by  the  subtlety  that  when  the  prisoner  had  once 
parted  with  the  personal  possession  of  it,  so  that  a  constructive  posses- 
sion by  the  prosecutor  began,  the  servant  who  subsequently  stole  it 
should  be  liable  to  be  punished,  as  if  there  had  been  a  prior  property 
and  possession  in  the  prosecutor,  and  that  the  servant  should  be  ad- 
judged liable  to  be  punished  for  a  crime,  instead  of  being  allowed  to 
say  that  he  had  only  committed  a  breach  of  trust,  for  which  he  might  be 
sued  in  a  civil  action.  In  approaching  the  confines  of  different  offences 
created  by  common  law  or  by  statute,  nice  distinctions  must  arise,  and 
must  be  dealt  with.  In  the  present  case  it  is  satisfactory  to  think  that 
the  ends  of  justice  are  effectually  gained  by  affirming  the  conviction  ; 
for  the  only  objection  to  it  is  founded  upon  an  argument  that  he  ought 
to  have  been  convicted  of  another  offence  of  the  same  character,  for 
which  he  would  have  been  liable  to  the  same  punishment. 


SKCT.  II.]  COMMONWEALTH   V.    RYAN.  543 

Jekvis,  C.  J.  I  concur  in  the  judgment  of  the  Lord  Chief  Justice. 
I  had  originally  written  a  judgment  concurring  in  the  view  taken  by 
my  lord  ;  but  ultimately  I  have  not  found  it  necessary  to  read  it.  It  is 
admitted  that  the  cart  was  in  the  possession  of  the  servant  for  a  special 
purpose  ;  if  he  had  taken  the  cart,  he  would  have  been  guilty  of  lar- 
ceny ;  and  if  tiie  cart  for  this  purpose  continued  the  cart  of  the  master, 
the  delivery  of  the  coals  into  the  cart  was  a  delivery  to  the  master,  and 
makes  the  offence  a  larceny. 

Pakkk,  B.  I  certainly  had  differed  from  the  view  of  tliis  case  which 
has  been  taken  by  Lord  Campbell  at  a  time  when  it  was  uncertain 
what  the  case  of  Spears  actually  was,  and  treating  this  case  as  res 
nova.  The  book  in  which  the  opinions  of  the  judges  are  written,  and 
which  is  always  in  the  custody  of  the  Loid  Chief  Justice,  was  mislaid  ; 
and  the  case  of  John  Spears  was  differently  rei^rted  in  the  two  editions 
of  Leach,  and  also  in  East's  Crown  Law;  and  that  case  could  not  for  a 
long  time  be  found.  However,  since  it  has  been  found,  I  have  satisfied 
myself;  and  I  entertain  no  doubt  upon  it.  I  should  have  delivered  mv 
reasons  at  length  ;  but  it  is  unnecessary  now  to  do  so.  The  cases  of 
Rex  V.  Abrahat  and  Rex  v.  Spears  having  been  discovered,  and  having 
read  that  case  with  the  explanation  of  Heath,  J.,  I  find  the  point  de^ 
cided;  and  though,  therefore,  if  this  were  res  nova,  I  should  have 
pronounced  an  opinion  that  this  was  not  larceny,  yet  as  that  case  is  a 
decided  authority,  by  the  authority  of  that  case  I  am  bound  ;  and  it  is 
unnecessary  for  me  to  deliver  my  reasons  at  any  greater  length. 

The  other  judges  concurred.  Conviction  affirmed. 


COMMONWEALTH  v.   RYAN. 
Supreme  Judicial  Court  of  Massachusetts.     1892. 

[Reported  155  Massachusetts,  523.]  \^ 

Holmes,  J.^  This  is  a  complaint  for  embezzlement  of  money. 
The  case  for  the  government  is  as  follows :  The  defendant  was  eni- 
ployed  by  one  Sullivan  to  sell  liquor  for  him  in  his  store.  Sullivan 
sent  two  detectives  to  the  store,  with  marked  money  of  Sullivan's,  to 
make  a  feigned  purchase  from  the  defendant.  One  detective  did  so. 
The  defendant  dropped  the  money  into  the  monev  drawer  of  a  cash 
register,  which  happened  to  be  open  in  connection  with  another  sale 
made  and  registered  by  the  defendant,  but  he  did  not  register  this  sale, 
as  was  customary,  and  afterward  —  it  would  seem  within  a  minute  or 
two —  he  took  the  money  from  the  drawer.  The  question  presented  is 
whether  it  appears,  as  matter  of  law,  that  the  defendant  was  not  guilty 
of  embezzlement,  but  was  guilty  of  larceny,  if  of  anything.     The  de- 

1  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 


544  COMMONWEALTH   V.   RYAN.  [CHAP.  XHL 

fendant  asked  rulings  to  that  effect  on  two  grounds  :  first,  that  after  the 
money  was  put  into  the  drawer  it  was  in  Sullivan's  possession,  and  there- 
fore the  removal  of  it  was  a  trespass  and  larceny ;  and  secondly,  that 
Sullivan's  ownership  of  the  money,  in  some  way  not  fully  explained, 
prevented  the  offence  from  being  embezzlement.  We  wuU  consider 
these  positions  successively. 

^  We  must  take  it  as  settled  that  it  is  not  larceny  for  a  servant  to  con- 
vert propert}'  delivered  to  him  by  a  third  person  for  his  master,  provided 
he  does  so  before  the  goods  have  reached  their  destination,  or  some- 
thing more  has  happened  to  reduce  him  to  a  mere  custodian  (Com- 
monwealth V.  King,  9  Cush.  284)  :  while,  on  the  other  hand,  if  the 
propert}'  is  delivered  to  the  servant  b}-  his  master,  the  conversion  is 
larcen}'.  Commonwealth  v.  Beny,  99  Mass.  428 ;  Commonwealth  v. 
Davis,  104  Mass.  548. 

This  distinction  is  not  ver}'  satisfactory,  but  it  is  due  to  historical 
accidents  in  the  development  of  the  criminal  law,  coupled,  perhaps, 
with  an  unwillingness  on  the  part  of  the  judges  to  enlarge  the  limits  of 
a  capital  offence.  2  Leach  (4th  ed.),  843,  848,  note  ;  1  Leach  (4th  ed.), 
35,  note ;  2  East  P.  C.  568,  571. 

The  history  of  it  is  this.  There  w-as  no  felonj'  when  a  man  received 
possession  of  goods  from  the  owner  without  violence.  Glanv.,  bk. 
10,  c.  13 ;  Y.  B.  13  Edw.  IV.  9,  pi.  5  ;  3  Co.  Inst.  107.  The  early 
judges  did  not  alwa3's  distinguish  clearl}-  in  their  language  between 
the  delivery  of  possession  to  a  bailee  and  the  giving  of  custody  to  a 
servant,  which  indeed  later  judges  sometimes  have  failed  to  do,  E.  g. 
Littleton  in  Y.  B.  2  Edw.  IV.  15,  pi.  7;  3  Hen.  VII.  12,  pi.  9; 
Ward  V.  Macauley,  4  T.  R.  489,  490.  When  the  peculiar  law  of  mas- 
ter and  servant  was  applied  either  to  the  master's  responsibilitj"  or  to 
his  possession,  the  test  seems  to  have  been  whether  or  not  the  servant 
was  under  the  master's  eye,  rather  than  based  on  the  notion  of  status 
and  identit}'  of  person,  as  it  was  at  a  later  day.  See  Byington  v. 
Simpson,  134  Mass.  169,  170.     Within  his  house  a  master  might  be 

^  answerable  for  the  torts  of  his  servant,  and  might  have  possession  of 
goods  in  his  servant's  custod}',  although  he  himself  had  put  the  goods 
into  the  servant's  hands ;  outside  the  house  there  was  more  doubt ;  as 
when  a  master  intrusted  his  horse  to  his  servant  to  go  to  market.  Y.  B. 
21  Hen.  VII.  14,  pi.  21 ;  T.  24  Edw.  III. ;  Bristol  in  Molloy,  De  Jure 
Maritimo,  bk.  2,  c.  3,  §  16 ;  Y.  B.  2  Hen.  IV.  18,  pi.  6  ;  13  Edw.  IV. 
10,  pi.  5  ;  s.  c.  Bro.  Abr.  Corone,  pi.  160 ;  Staundforde,  I.,  c.  15,  fol. 
25  ;  c.  18,  fol.  26  ;  1  Hale,  P.  C.  505,  note.  See  Heydon  &  Smith's 
case,  13  Co.  Rep.  67,  69  ;  Drope  v.  Theyar,  Popham,  178,  179  ;  Combs 
V.  Bradley,  2  Salk.  613  ;  and,  further,  42  Ass.  pi.  17,  fol.  260  ;  42  Edw. 
IIL  11,  pi.  13;  Ass.  Jerus.  (ed.  1690),  cc.  205,  217.  It  was  settled 
by  St.  21  Hen.  VIII.  c.  7,  that  the  conversion  of  goods  delivered  to  a 
servant  by  his  master  was  felon}',  and  this  statute  has  been  thought  to 
be  only  declarator}-  of  the  common  law  in  later  times,  since  the  distinc- 
tion between  the  possession  of  a  bailee  and  the  custody  of  a  servant 


SECT.  II.]  COMMONWEALTH   V.    RYAN.  545 

has  been  developed  more  fulh",  on  the  grouiid  that  the  custod}  of  the 
servant  is  the  possession  of  the  master.  2  East  P.  C.  5G4,  5C5  ;  The 
King  IK  Wilkins,  1  Leach  (Uh  ed.),  '>20,  523.  See  Kelyng,  35  ;  Fitzii. 
Nat.  Brev.  91  P2;  Blosse's  ease,  Moore,  218;  s.  c.  Owen,  52,  and 
Gouldsb.  72.  But  proliably  when  the  act  was  passed  it  confirmed  the 
above  mentioned  doubt  as  to  the  master's  possession  where  the  servant 
was  intrusted  with  property  at  a  distance  from  his  master's  house  in 
cases  outside  the  statute,  tliat  is,  when  the  chattels  were  delivered  l)y  a 
third  person.  In  Dyer,  5a,  i)l>,  it  was  said  that  it  was  not  within  tlie 
statute  if  an  apprentice  ran  off  with  the  mone}'  received  from  a  third 
person  for  his  master's  goods  at  a  fair,  because  he  had  it  not  by  the 
delivery  of  his  master.  This,  ver}'  likel}',  was  correct,  because  the 
statute  only  dealt  with  deliver}-  by  the  master  ;  l)ut  tlie  case  was  taken 
before  long  as  authority  for  the  broader  proposition  that  the  act  is  not 
a  felon}',  and  the  reason  was  invented  to  account  for  it  that  the  servant 
has  possession,  because  the  money  is  delivered  to  him.  1  Hale  P.  C. 
667,  668.  This  phrase  about  delivery  seems  to  have  been  used  first  in 
an  attempt  to  distinguish  between  servants  and  bailees.  Y.  B.  13 
Edw.  IV.  10,  pi.  5  ;  Moore,  248  ;  but  as  used  here  it  is  a  perverted 
remnant  of  the  old  and  now  exploded  notion  that  a  servant  awa}'  from 
his  master's  house  always  has  possession.  Tlie  old  case  of  the  servant 
converting  a  horse  with  which  his  master  had  intrusted  him  to  go  to 
market  was  stated  and  exi)lained  in  tlie  same  way,  on  the  ground  that 
the  horse  was  delivered  to  the  servant.  Crompton,  Just,  35/>,  pi.  7. 
See  The  King  v.  Bass,  1  Leach  (4th  ed.),  251.  Yet  the  emptiness  of 
the  explanation  was  shown  by  the  fact  that  it  still  was  held  felony  when 
the  master  delivered  propert}'  for  service  in  his  own  house.  Kelyng, 
35.  The  last  step  was  for  the  princii)lc  thus  qualified  and  explained 
to  be  applied  to  a  delivery  by  a  third  person  to  a  servant  in  his  master's 
shop,  although  it  is  possible  at  least  that  the  case  would  have  been 
decided  differently  in  the  time  of  the  Year  Books  (Y.  B.  2  Edw.  IV. 
15  pi.  7  ;  Fitzh.  Nat.  Brev.  91  E)  ;  and  although  it  is  questionable 
■whether  on  sound  theory  the  possession  is  not  as  much  in  the  master  as 
if  he  had  delivered  the  property  himself.  Rex  v.  Dingley  (1G87),  stated 
in  The  King  u.  Bazele}-,  2  Leach  (4th  ed.),  835,  841,  and  in  The  King 
V.  Meeres,  1  Show.  50,  53  ;  Waite's  case  (1743),  2  East  P.  C.  570 ;  s.  c. 
1  Leach  (4tb  ed.),  28,  35,  note;  Bull's  case,  stated  in  The  King  v. 
Bazeley,  2  Leach  (4th  ed.),  835,  841  ;  s.  c.  2  East  P.  C.  571,  572  ;  The 
King  u.  Bazele}',  ubi  supra;  Regina  v.  Masters,  1  Den.  C.  C.  332; 
Regina  v.  Reed,^  Dears.  C.  C.  257,  261,  262. 

The  last  mentioned  decisions  made  it  necessary  to  consider  with  care 
what  more  was  necessary,  and  what  was  sufJieient,  to  reduce  the  servant 
to  the  position  of  a  mere  custodian.  An  obvious  case  was  when  the 
property  was  finally  deposited  in  the  place  of  deposit  provided  l\v  the 
master,  and  subject  to  his  control,  although  there  was  some  nice  discus- 
sion as  to  what  constituted  such  a  place.  Regina  r.  Reed.  Dears.  C.  C. 
257.     No  doubt  a  final  deposit  of  money  in  the  till  of  a  shop  would 

35 


546  COMMONWEALTH    V.    RYAN.  [CHAP.  XIII. 

have  the  effect.  Waite's  case,  2  East  P.  C.  570,  571  ;  s.  c.  1  Leach 
(4th  ed.),  28,  35,  note  ;  Bull's  case,  2  East  P.  C.  572  ;  s.  c.  2  Leach  (4th 
ed.),  841,  842;  The  King  r.  Bazeley,  2  East  P.  C.  571,  574;  s.  c.  2 
Leach  (4th  ed.),  835,  843,  note  ;  Regina  v.  Wright,  Dears.  &  Bell,  431, 
44  L  But  it  is  plain  that  the  mere  physical  presence  of  the  money  there 
for  a  moment  is  not  conclusive  while  the  servant  is  on  the  spot  and  has 
not  lost  his  power  over  it ;  as,  for  instance,  if  the  servant  drops  it,  and 
instantly  picks  it  up  again.  Such  cases  are  among  the  few  in  which 
!  the  actual  intent  of  the  party  is  legally  important ;  for,  apart  from 
other  considerations,  the  character  in  which  he  exercises  his  control 
depends  entirely  upon  himself.  Sloan  v.  Merrill,  135  Mass.  17,  19; 
Jefferds  <'.  Alvard,  151  Mass.  94,  95  ;  Commonwealth  v.  Drew,  153 
Mass.  588,  594. 

It  follows  from  what  we  have  said  that  the  defendant's  first  position 
cannot  be  maintained,  and  that  the  judge  was  right  in  charging  the 
jury  that,  if  the  defendant  before  he  placed  the  money  in  the  drawer 
intended  to  appropriate  it,  and  with  that  intent  simply  put  it  in  the 
drawer  for  his  own  convenience  in  keeping  it  for  himself,  that  would 
not  make  his  appropriation  of  it  just  afterwards  larceny.  The  distinc- 
tion may  be  arbitrary,  but,  as  it  does  not  affect  the  defendant  otherwise 
than  by  giving  him  an  opportunity,  whichever  offence  he  was  convicted 
of,  to  contend  that  he  should  have  been  convicted  of  the  other,  we  have 
the  less  uneasiness  in  applying  it. 

AVith  regard  to  the  defendant's  second  position,  we  see  no  ground  for 
contending  that  the  detective  in  his  doings  was  a  servant  of  Sullivan, 
or  that  he  had  not  a  true  possession  of  the  money,  if  that  question  were 
open,  which  it  is  not.  The  only  question  reserved  by  the  exceptions  is 
whether  Sullivan's  ownership  of  the  money  prevented  the  defendant's 
act  from  being  embezzlement.  It  has  been  supposed  to  make  a  differ- 
ence if  the  right  of  possession  in  the  chattel  converted  by  the  servant 
has  vested  in  the  master  previous  to  the  delivery  to  the  servant  by  the 
third  person.  1  Eng.  Crim.  Law  Com'rs  Rep.  (1834),  31,  pi.  4.  But 
this  notion,  if  anything  more  than  a  defective  statement  of  the  decisions 
as  to  delivery  into  the  master's  barge  or  cart  (Rex  v.  Walsh,  4  Taunt. 
258,  266,  and  Regina  v.  Reed,  ubi  supra),  does  not  apply  to  a  case 
like  the  present,  which  has  been  regarded  as  embezzlement  in  England 
for  the  last  hundred  years.  Bull's  case,  stated  in  The  King  v.  Bazeley, 
2  Leach  (4th  ed.),  835,  841  :  s.  c.  2  East  P.  C.  571,  572;  The  King 
V.  Whittingham,  2  Leach  (4th  ed.),  912  ;  The  King  v.  Headge,  2  Leach 
(4th  ed.),  1033  ;  s.  c.  Russ.  &  Ry.  160  ;  Regina  v.  Gill,  Dears.  C.  C. 
289.  If  we  were  to  depart  from  the  English  decisions,  it  would  not  be 
in  the  way  of  introducing  further  distinctions.  See  Commonwealth  v. 
Bennett,  118  Mass.  443,  454. 

Exceptions  overruled. 


SECT.  II.]  REX   V.    MUCKLOW.  547 

SECTION    II.   {cnntiymed). 
(c)  Possession  in  case  of  Finding. 

REX   V.    MUCKLOW. 
Crown  Case  Reserved.     1827. 

[RefKirted  1  Moodi/  C.  C.  160] 

The  prisoner  was  tried  before  Mr.  Justice  Ilolroyd,  at  tlie  Spring 
assizes  for  the  county  of  Warwick,  in  the  year  1827,  upon  an  indict- 
ment which  charged  him  with  stealing  a  bill  of  exfhange  for  ten 
pounds  eleven  shillings  and  sixpence,  the  first  count  stating  it  to 
be  the  property  of  John  Lea  and  others,  and  the  second  count  as  the 
property  of  one  other  James  Mucklow.  There  were  two  other  counts 
stating  it  to  be  a  warrant  for  the  payment  of  ten  pounds  eleven  shil- 
lings and  sixpence,  instead  of  a  bill  of  exchange. 

The  instrument  in  question  was  a  draft  drawn  by  John  Lea  and 
Sons,  on  the  day  it  bears  date,  at  Kidderminster  (where  they  carried 
on  business),  on  their  bankers  at  the  same  place,  and  was  as  follows  :  — 

Kidderminster,  Dec.  1.  1826. 
Messrs.  "Wakkman  and  Turner,  Rankers,  Kidderminster: 

Pay  Mr.  James  Mucklow,  or  bearer,  ten  pounds  eleven  shillings  and 
sixpence. 

£10.  lis.  6fZ.  John  Lea  and  Sons. 

This  draft  was  unstamped,  and  was  written  on  the  same  sheet  of 
paper  with  a  letter,  directed  "James  Mucklow,  Saint  :\Iartin's  Lane, 
Birmingham,"  and  was  sent  by  Lea  and  Sons  by  the  post  to  Birming- 
ham, which  is  eighteen  miles  from  Kidderminster. 

No  person  of  that  name  being  found  or  heard  of  to  be  living  in 
Saint  Martin's  Lane,  Birmingham,  and  the  prisoner  living  in  a  house 
about  a  dozen  yards  from  Saint  :Martin's  Lane,  with  his  father,  Joseph 
Mucklow  (who  was  also  included  in  the  same  indictment,  but  ac- 
quitted), the  postman,  on  the  second  of  the  same  December,  called 
witlfi  the  letter  at  their  house  when  they  were  out,  and  left  a  message 
that  there  was  a  letter  for  them  which  they  were  to  send  for :  and  it 
was  in  consequence  thereof,  on  the  same  day.  delivered  to  the  father, 
and  afterwards  came  to  the  hands  of  the  prisoner  his  son,  who  appro- 
priated the  draft  to  his  own  use,  and  received  payment  of  it,  under  cir- 
cumstances proved  by  evidence  arising  from  the  contents  of  the  letter, 
and  otherwise,  that  satisfied  the  jury  he  knew  the  letter  and  draft  were 
not  intended  for  him,  but  for  another  person,  and  upon  which  they 
found  him  guilty  of  the  larceny. 

The  letter  and  draft  were  intended  for  another  Mr.  James  Mucklow, 
then  of  New  Hall  Street.  Birmingham,  to  whom  Messrs.  Lea  and  Sons 


548  MERRY  V.   GREEN.  [CHAP.^XT.II. 

were  then  indebted,  to  the  amount  of  the  sum  contained  in  the  draft, 
for  goods  sold  and  delivered  ;  but  it  was  misdu-ected  to  Saint  Martin's 
Lane  by  mistake,  and  sent  by  the  post,  in  consequence  of  an  appli- 
cation by  letter  bj-  that  James  Mucklow  to  them  for  payment,  as  the 
goods  were  sold  for  cash. 

It  was  objected  that  this  could  not  in  law  amount  to  larceny,  as  the 
possession  of  the  letter  and  draft  had  been  voluntarily  parted  with  by 
Lea  and  Sons,  and  also  by  the  postman,  and  without  an}'  fraud  on  the 
part  of  the  prisoner;  and  Story's  case,  Russ.  &  Ry.  C.  C.  R.  81,  and 
Walsh's  case,  ibid.  215,  were  cited. ^ 

The  learned  judge  respited  the  judgment,  to  take  the  opinion  of  the 
judges  on  these  points. 

At  a  meeting  of  the  judges  in  Easter  Term,  1827,  this  conviction 
was  held  wrong,  on  the  ground  that  it  did  not  appear  that  the  prisoner 
had  any  animus  furandi  when  he  first  received  the  letter ;  and  a 
pardon  was  recommended. 


MERRY    V.   GREEN. 
Exchequer.     1841. 

[Reported  7  Meeson  ^-  Welsby,  623.] 

Trespass  for  assault  and  false  imprisonment.  Pleas  :  first,  not  guilty, 
whereupon  issue  was  joined  ;  secondly,  that  the  plaintiff  had  feloniously 
stolen,  taken,  and  carried  awa}'  a  certain  purse  filled  with  coin,  etc.,  of 
the  goods  and  chattels  of  one  Francis  Tunnicliffe,  wherefor  the 
defendants  had  given  the  plaintiff  in  charge  to  a  peace-officer,  and  the 
plaintiff  was  therefore  arrested  and  detained  a  reasonable  time,  which 
are  the  alleged  trespasses  in  the  declaration  mentioned.^  To  this  plea 
the  plaintiff  replied  cle  injuria,  whereupon  issue  was  joined. 

At  the  trial  before  Tindal,  C.  J.,  at  the  last  Warwickshire  Assizes, 
the  following  appeared  to  be  the  facts  of  the  case  :  Messrs  Mammatt 
and  Tunnicliffe,  who  had  for  some  time  resided  together  at  Ashbj'-de- 
la-Zouch,  in  the  same  house,  and  keeping  the  same  table  and  servants, 
in  October,  1839,  broke  up  their  establishment  and  sold  their  furniture 
(which  was  partly  joint  and  parth'  separate  property)  by  public  auction. 
At  that  sale  the  plaintiff,  who  was  a  shoemaker  also  residing  in  Ashby, 
became  the  purchaser,  at  the  sum  of  £1  6s.,  of  an  old  secretary  or 
bureau,  the  separate  property  of  Mr.  Tunniclifl'e.  The  plaintiff  kept  the 
l)ureau  in  his  house,  and  on  the  18th  of  November  following,  he  sent 
for  a  boy  of  the  name  of  Garland,  a  carpenter's  apprentice,  to  do  some 
repairs  to  the  bureau.     While  Garland  was  so  engaged  he  remarked  to 

1  Two  other  o})jectioiis  urged  by  the  defendant  are  omitted. 

2  The  substance  only  of  the  second  plea  is  stated. 


^^'^^"  "•]  MERRV  V.   GREEN. 


540 


tlie   plaintiff  that  be  thought  there  were  some   secret  drawers  in  the 
bureau,  and  touching  a  si)ring  he  pulled  out  a  drawer  which  contained 
a  quantity  of  writings.     The  plaintiff  then  discovered  another  drawer, 
in  which  was  a  purse  containing  several  sovereigns  and  other  coins,  and 
under  the  purse  a  quantity  of  bank-notes.     Of  this  property  the  plain- 
tiff took  possession,  and  telling  Garland  that  the  notes  were  bad,  he 
opened  the  purse  and  gave  him  one  of  the  sovereigns,  at  the  same 
time  charging  him  to  keep  the  matter  secret.     (Jarland   being  interro- 
gated by  his  parents  how  he  came  by  the  possession  of  the  s°overeign, 
the  transaction  transpired  ;  and  it  being  subsequently  discovered  that 
the  plaintiff  had   appropriated    the  property    to    his  own  u.se,  falsely 
alleging  that  he  had  never  had  possession  of  a  great  portion  of  it,  the 
defendants  (one  of  whom  was  the  solicitor  of  Mr.  TunniclillV)  went  with 
a  police  officer  to  the  plaintiff's  house,  took  him  into  custody,  and  con- 
veyed him  before  a  magistrate,  on  a  charge  of  felony.     The  plaintiff 
was  ultimately  discharged,  the  magistrate  doubting  whether  a  charge 
of  felony  could  be  supported.     At  the  trial,  a  witness  of  the  name  of 
Hannah  Jenkins  was  called  on  behalf  of  the  plaintiff,   who  deposed 
that  she  was  present  at  the  auction  and  remembered  the  piece  of  furni- 
ture in  question  being  put  up  for  sale  and  bought  by  the  plaintiff;  that 
after  it  was  sold  an  observation  was  made  by  some  of  the  bystanders 
to  the  effect  that  the  plaintiff  might  have  bought  something  more  than 
the  bureau,  as  one  of  the  drawers  would  not  open,  upon  which  the 
auctioneer  said,  "So  much  the  better  for  the  buyer;"  ad<lii)g,   -'I 
have  sold  it  with  its  contents,  and  it  is  his."     This  statement  was  op- 
posed by  the  evidence  of  the  auctioneer,  who  stated,  on  cros.s-exami- 
natiou  by  the  defendant's  counsel,   that  there  was  one  drawer  which 
would   not  open,    and   that  what  he  had  said  was,  "  That  is  of  no 
consequence ;  I  have  sold  the  secretary  and  not  its  contents."     It  did 
not  appear  that  any  person  knew  that  the  bureau  contained  anything 
whatever. 

The  learned  chief  justice,  in  summing  up,  told  the  jury  that,  as  the 
property  had  been  delivered  to  the  plaintiff  as  the  purchaser,  he 
thought  there  had  been  no  felonious  taking ;  and  left  to  them  the  ques- 
tion of  damages  only,  reserving  leave  for  the  defendant  to  move  to 
enter  a  nonsuit.  The  jury  found  a  verdict  for  the  plaintiff  with  £50 
damages. 

In  Michaelmas  Term,  Whitehurst  obtained  a  rule  to  show  cause  whv 
the  verdict  should  not  be  set  aside  and  a  nonsuit  entered  or  a  new 
trial  had.^ 

Parke,  B.  In  this  esse  there  was  clearly  no  bailment,  because  there 
was  no  intention  to  part  with  the  property  in  question.  It  amounts 
therefore,  only  to  a  finding,  and  comes  within  the  modern  decisions  on 

1  Arguments  of  counsel  are  omitted.  During  the  argument  for  the  plaintiff  Pabkk. 
B.,  said  :  "  Suppose  a  person  finds  a  cheque  in  the  street,  and  in  the  first  in.stance  takes 
it  up  merely  to  see  what  it  is  :  if  afterwards  he  cashes  it,  and  appropriates  tlio  nionej 
to  his  own  use,  that  is  a  felony,  though  he  is  a  mere  tinder  till  he  lotiLs  at  it."  —  Ed. 


550  MEERY   V.    GREEN.  [CHAP.  XIII. 

that  subject.  It  is  a  matter  fit  for  our  serious  consideration,  aud  we 
will  speak  to  the  chief  justice  before  we  deliver  our  judgment.  No 
doubt  the  same  evidence  is  necessary  in  the  present  case  as  would  be 
required  to  support  an  indictment.  Cur.  adv.  valt. 

The  judgment  of  the  court  was  now  delivered  by  — 

Pakkt.,  B.  My  Lord  Chief  Justice  thought  in  this  case  that,,  even 
assuming  the  facts  of  which  evidence  was  given  by  the  defendant  to 
be  true,  the  taking  of  the  purse  and  abstracting  its  contents  was  not  a 
lurceu}- ;  and  that  is  the  question  which  he  reserved  for  the  opinion  of 
the  court,  giving  leave  to  move  to  enter  a  nonsuit.  After  hearing  the 
argument,  we  have  come  to  the  conclusion  that,  if  the  defendant's  case 
was  true,  there  was  sufficient  evidence  of  a  larceny  by  the  plaintiff;  but 
we  cannot  direct  a  nonsuit,  because  a  fact  was  deposed  to  on  the  part 
of  the  plaintiff  which  ought  to  have  been  left  to  the  jury,  and  which,  if 
believed  by  them,  would  have  given  a  colorable  right  to  him  to  the  con- 
tents of  the  secretary  as  well  as  to  the  secretary  itself;  namely,  the 
declaration  of  the  auctioneer  that  he  sold  all  that  the  piece  of  furniture 
contained  with  the  article  itself;  and  then  the  abstraction  of  the  con- 
tents could  not  have  been  felonious.  There  must  therefore  be  a  new 
trial,  and  not  a  nonsuit. 

But  if  we  assume,  as  the  defendant's  case  was,  that  the  plaintiff  had 
express  notice  that  he  was  not  to  have  any  title  to  the  contents  of  the 
secretary  if  there  happened  to  be  anything  in  it,  aud  indeed  without 
such  express  notice,  if  he  had  no  ground  to  believe  that  he  had  bought 
the  contents,  we  are  all  of  opinion  that  there  was  evidence  to  make 
out  a  case  of  larceny. 

It  was  contended  that  there  was  a  deliver}-  of  the  seci'etar}'  and  the 
money  in  it  to  the  plaintiff  as  his  own  propert},  which  gave  him  a 
lawful  possession,  and  that  his  subsequent  misappropriation  did  not 
constitute  a  felony.  But  it  seems  to  us  that,  though  there  was  a  dcliv- 
er}'  of  the  secretary',  and  a  lawful  propert}'  in  it  therebj'  vested  in  the 
plaintiff,  there  was  no  delivery  so  as  to  give  a  lawful  possession  of  tlie 
purse  and  mone}'.  The  vendor  had  no  intention  to  deliver  it,  nor 
vendee  to  receive  it ;  both  were  ignorant  of  its  existence  ;  and  when 
the  plaintiff  discovered  that  there  was  a  secret  drawer  containing  the 
purse  and  money,  it  was  a  simple  case  of  finding,  and  the  law  applica- 
ble to  all  cases  of  finding  applies  to  this. 

The  old  rule,  that  'Mf  one  lose  his  goods  and  another  find  them, 
though  he  convert  them  animo  furandi  to  his  own  use,  it  is  no  larceny," 
has  undergone  in  more  recent  times  some  limitations  ;  one  is,  that  if  the 
finder  knows  wlio  the  owner  of  the  lost  chattel  is,  or  if,  from  anj'  mark 
upon  it  or  the  circumstances  under  which  it  is  found,  the  owner  could 
be  reasonably  ascertained,  then  the  fraudulent  conversion  a7ii7no 
furandi  constitutes  a  larceny.  Under  this  head  fall  the  cases  where 
the  finder  of  a  pocket-book  with  bank-notes  in  it  with  a  name  on  tliera 
\     converts  them  animo  furandi ;  or  a  hackney  coachman  who  abstracts 


SECT.  II.]  REGI.NA    V.    THUKBOKN.  551 

the  contents  of  ii  parcel  which  has  been  left  in  bis  coach  by  a  pas- 
senger, whom  he  could  easily  ascertain  ;  or  a  tailor  who  liiids  and  a[)- 
plies  to  his  own  use  a  pocket-book  in  a  coat  sent  to  him  to  repair  bv  a 
customer,  whom  he  uiust  know  ;  all  these  have  been  held  to  be  cases  of 
larceny  ;  and  the  present  is  an  instance  of  the  same  kind  and  not  dis- 
tinguishable from  them.  It  is  said  that  the  offence  cannot  be  larceny 
unless  the  taking  would  l)e  a  trespass,  and  that  is  true  ;  but  if  the 
finder,  from  the  circumstances  of  the  case,  must  have  known  who  was 
the  owner,  and  instead  of  keeping  the  chattel  for  him,  means  fronj  the 
first  to  appropriate  it  to  his  own  use,  he  does  not  acquire  it  by  a  rigiilful 
title,  and  the  true  owner  might  maintain  trespass  ;  and  it  seems  also 
from  Wynne's  case  that  if,  under  the  like  circumstances,  he  acquire 
possession  and  moan  to  act  honestly,  but  afterwards  alter  his  mind 
and  open  the  parcel  with  intent  to  embezzle  its  contents,  such  unlawful 
act  would  render  him  guilty  of  larcenj-. 

We  therefore  think  that  the  rule  must  be  absolute  for  a  new  trial,  in 
order  that  a  question  may  be  submitted  to  the  jury  whether  the  plain- 
tiff had  reason  to  believe  that  he  bought  the  contents  of  the  bureau, 
if  any,  and  consequently  had  a  color  of  right  to  the  propert}-.* 

Mule  absolute  for  a  new  trial. 


REGINA   V.   TIIURBORN. 
Crown  Case  Reserved.     1849. 

[Reported  1  Venison  C.  C.  387.''] 

The  prisoner  was  tried  before  Parke,  B.,  at  the  summer  assizes  for 
Huntingdon,  1848,  for  stealing  a  bank-note. 

He  found  the  note,  which  had  been  accidentally  dropped  on  the  high 
road.  There  was  no  name  or  mark  on  it,  indicating  who  was  tlic 
owner,  nor  were  there  any  circumstances  attending  the  findinij  wiiich 
■would  enable  him  to  discover  to  whom  the  note  belonged  wlien  he 
picked  it  up ;  nor  had  he  any  reason  to  believe  that  the  owner  knew 
where  to  find  it  again.  The  prisoner  meant  to  appropriate  it  to  his 
own  use,  when  he  picked  it  up.  The  day  after,  and  before  hf>  had  di.'s- 
posed  of  it,  he  was  informed  that  the  prosecutor  was  the  owner,  nml 
had  dropped  it  accidentally  ;  he  then  chnnged  it.  and  appropriated  the 
money  taken  to  his  own  use.  The  jury  foinid  thnt.  he  had  re.M.<5on  to 
believe,  and  did  believe  it  to  be  the  prosecutor's  property,  before  he 
thus  changed  the  note. 

The  learned  Baron  directed  a  verdict  of  guilty,  intimating  tiiat  he 

1  Ace.  Cartwrialit  r.  Green,  8  Ves.  405  ;  llohinsou  r.  State.  II  Tex.  App  40.1  See 
Durfee  v.  Jones,  11  R.  I.  .588  ;  s.  c.  1  Gray's  Cases  on  Prop  .SSO.  —  Ki>. 

2  This  case  was  reported  as  Keg.  v.  W^ood,  3  Cox  C.  C.  453.  —  Eu. 


552  EEGINA  V.   THURBORN.  [CHAP.  XIII. 

should  reserve  the  case  for  further  consideration.  Upon  conferring 
with  Maule,  J.,  the  learned  Baron  was  of  opinion  that  the  original 
taking  was  not  felonious,  and  that  in  the  subsequent  disposal  of  it 
there  was  no  taking,  and  he  therefore  declined  to  pass  sentence,  and 
ordered  the  prisoner  to  be  discharged,  on  entering  into  his  own  recog- 
nizance to  appear  when  called  upon. 

On  the  30th  of  April,  a.  d.  1849,  the  following  judgment  was  read 
by  Parke,  B  :  — 

A  case  was  reserved  by  Parke,  B.,  at  the  last  Huntingdon  Assizes. 
It  was  not  argued  by  counsel,  but  the  judges  Mho  attended  the  sitting 
of  the  court  after  Michaelmas  Term,  1848,  namely-,  the  L.  C.  Baron, 
Patteson,  J.,  Rolfe,  B.,  Cresswell,  J.,  Williams,  J.,  Coltman,  J.,  and 
Parke,  B.,  gave  it  much  consideration  on  account  of  its  importance, 
and  the  frequency  of  the  occurrence  of  cases  in  some  degree  similar  in 
the  administration  of  the  criminal  law,  and  the  somewhat  obscure  state 
of  the  authorities  upon  it.     [The  learned  Baron  here  stated  the  case.] 

In  order  to  constitute  the  crime  of  larcen}',  there  must  be  a  taking  of 
the  chattel  of  another  aninio  furandi,  and  against  the  will  of  the 
owner.  This  is  not  the  full  definition  of  larceny,  but  so  much  onlj'  of 
it  as  is  necessary  to  be  referred  to  for  the  present  purpose  ;  b}-  the  term 
aidmo  furandi  is  to  be  understood  the  intention  to  take,  not  a  partic- 
ular temporary,  but  au  entire  dominion  over  the  chattel,  without  a 
color  of  right.  As  the  rule  of  law  founded  on  justice  and  reason  is 
that  actus  non  facit  reum  nisi  mens  sit  rea,  the  guilt  of  the  accused 
must  depend  on  the  circumstances  as  the}'  appear  to  him,  and  the  crime 
of  larceny  cannot  be  committed  unless  the  goods  taken  appear  to  have 
au  owner,  and  the  part}'  taking  must  know  or  believe  that  the  taking  is 
against  the  will  of  that  owner. 

In  the  earliest  times  it  was  held  that  chattels  which  were  apparently 
without  an  owner,  "  nulHus  in  bonis,"  could  not  be  the  subject  of 
larcenj'.  Stamford,  one  of  the  oldest  authorities  on  criminal  law,  who 
was  a  judge  in  the  reign  of  Philip  and  Mar}',  says,  B.  1  ch.  16,  "  Treas- 
ure trove,  wreck  of  the  sea,  waif  or  stra}-,  taken  and  carried  awaj-  is 
not  felon}'."  "Quia  dominus  rerum  non  apparet,  ideo  cujus  sunt 
incortura  est,"  For  this  he  quotes  Fitz.  Abr.  Coron.  p.  187,  265  ;  these 
passages  are  taken  from  22  Ass.  99;  22  Ed.  III.,  and  mention  only 
"treasure  trove,"  "wreck,"  and  "waif,"  and  Fitz.  says  the  punish- 
ment for  taking  such  is  not  the  loss  of  life  or  limb.  The  passage  in  3 
Inst.  108,  goes  beyond  this;  Lord  Coke  mentions  three  cii'cumstances 
as  material  in  larceny  :  first,  the  taking  must  be  felonious,  which  he 
explains  ;  secondly,  it  must  be  an  actual  taking,  which  he  also  ex- 
])lains  ;  and  thirdly,  "  it  is  not  by  trover  or  finding  ;  "  he  then  proceeds 
as  follows:  "If  one  lose  his  goods  and  another  find  them,  though  he 
convert  them  'animo  furandi,'  to  his  own  use,  it  is  not  larceny,  for  the 
first  taking  is  lawful.  So  if  one  find  treasure  trove,  or  waif  or  stray 
(here  '  wreck '  is  omitted  and  '  stray  '  introduced),  and  convert  them  nt 
supra,  it  is  no  larceny,  both  in  respect  of  the  finding,  and  that  '  dom- 


SECT.  II.]  REGINA   V.   TIIURBORN.  55?, 

inus  rerum  non  apparct.'"     The  only  autliorit}'  given  is  that  before 
mentioned:   22  Ass.  09  ;    22  K<1.  III. 

Now  treasure  trove  and  wail"  seem  to  be  subject  to  a  different  con- 
struction from  goods  lost.  Treasure  trove  is  properly  monc}-  supi)osed 
to  have  been  hidden  by  some  owner,  since  deceased,  the  secret  of  the 
de[)osit  having  i)erished,  and  therefore  belongs  to  the  Crown  ;  as  to 
waif,  the  original  owner  loses  his  right  to  the  property  by  neglecting  to 
pursue  the  thief.  The  ver}'  circumstances  under  which  these  are 
assumed  to  have  been  taken  and  converted  shew  that  they  could  not 
be  taken  from  any  one,  there  being  no  owner.  Wreck  and  stray  are 
not  exactly  on  the  same  footing  as  treasure  trove  and  waif;  wreck  is 
not  projjcrly  so  called  if  the  real  owner  is  known,  and  it  is  not  for- 
feited until  after  a  year  and  a  day. 

The  word  "  estray  "  is  used  in  the  books  in  different  senses,  as  may 
be  seen  in  Com.  Dig.  Waife,  F.,  where  it  is  used  in  the  sense  of  cattle 
forfeited  after  being  in  a  manor  one  year  and  one  day  without  chal- 
lenge, after  being  proclaimed,  where  the  propert\'  vests  in  tlie  Crown, 
or  its  grantee  of  estra3's ;  and  also  of  cattle  straying  in  the  manor, 
before  they  are  so  forfeited.  Blackstone,  vol.  2,  5G1,  Stephens'  ed., 
defines  estrays  to  be  "  such  valuable  animals  as  are  found  wandering 
in  an}'  manor  or  lordship,  and  no  man  knoweth  the  owner  of  them,  in 
which  case  the  law  gives  them  to  the  Sovereign." 

In  the  passage  in  Stamford  no  doubt  the  word  is  used,  not  exclu- 
sively in  the  former  sense,  but  generally  as  to  all  stray  cattle  not 
seized  by  the  lord.  Now  treasure  trove  and  waif,  properly  so  called, 
are  clearly  "  bona  vacantia,  nullius  in  bonis,"  and  but  for  the  preroga- 
tive would  belong  to  the  first  finder  absolutely. 

"  Cum  igitur  thesaurus  in  nullius  bonis  sit,  et  antiquitus  de  jure 
natural!  esset  inventoris,  nunc  de  jure  gentium  eflficitur  ipsius  doinini 
regis."  Bracton,  Coron.  L.  3,  c.  3,  p.  126.  Wreck  and  stray,  in  the 
sense  we  ascribe  to  those  words,  are  not  in  the  same  situation,  for  the 
right  of  the  owner  is  not  forfeited  until  the  end  of  a  year  and  a  day ; 
but  Lord  Coke,  in  Constable's  case,  5  Rep.  108  a,  treats  wreck  also  as 
"nullius  in  bonis;"  and  estrays,  "animalia  vagantia,"  he  terms 
"  vacantia,"  because  none  claims  the  propertv.  Wreck  and  cstr.ay, 
however,  before  seizure,  closely  resemble  goods  lost,  of  which  the 
owner  has  not  the  actual  possession,  and  afford  an  analogy  to  which 
Lord  Coke  refers  in  the  passage  above  cited. 

Whether  Lord  Coke  means,  what  the  language  at  first  sight  imports, 
that  under  no  circumstances  could  the  taker  of  goods  really  lost  and 
found  1)6  guilty  of  larceny,  is  not  clear ;  but  the  passage  is  a  complete 
and  satisfactory  authority  that  a  person  who  finds  goods  which  are 
lost  ma}'  convert  them  animo  furandi  under  some  circumstances  so  as 
not  to  be  guilty  of  larceny.  The  two  reasons  assigned  by  him  are,  that 
the  person  taking  has  a  right  in  respect  of  the  finding,  and  also  that 
they  are  apparently  without  an  owner,  "  dominus  rerum  non  apparet," 
an  owner,  "  or  "  the  owner  does  not  appear. 


554 


KEGINA   V,    TIIUliBORN. 


[chap.  XIII. 


The  first  of  these  reasons  has  led  to  the  opinion  that  the  real  mean- 
ing of  Lord  Coke  was  not  that  every  finder  of  lost  goods  who  takes 
animo  furancU  is  not  guilty  of  felony,  bnt  that  if  one  finds,  and  inno- 
cently takes  possession,  meaning  to  keep  for  the  real  owner,  and  after- 
wards changes  his  mind  and  converts  to  his  own  use,  he  is  not  a  felon, 
on  the  principle  that  Lord  Coke  had  previously  laid  down,  viz.,  that 
"  the  intent  to  steal  must  be  when  the  thing  stolen  cometh  to  his 
possession,  for  if  he  hath  the  possession  of  it  once  lawfully,  though  he 
hath  aidrnum  fur  audi  afterwards,  and  carryeth  it  away  afterwards,  it 
is  no  larceny  ;  "  and  Lord  Coke  also  cites  Glanville,  "  Furtum  uon  est 
ubi  initium  habet  detentionis  per  dominium  rei." 

It  is  said  therefore  that  the  case  of  finding  is  an  instance  of  this,  — 
beginning  with  lawful  title,  which  consequently  cannot  become  a  felony 
by  subsequent  conversion  ;  but  if  it  be  originally  taken,  not  for  the  true 
owner,  but  with  intent  to  appropriate  it  to  his  own  use,  it  is  a  felony  ; 
and  of  this  opinion  the  commissioners  for  the  amendment  of  the  crimi- 
nal law  appear  to  have  been,  as  stated  in  their  first  report. 

This  opinion  appears  to  us  not  to  be  well  founded  ;  for  Lord  Coke 
puts  the  case  of  lost  goods  on  the  same  footing  as  waif  and  treasure 
trove,  which  are  really  bona  vacantia,  goods  without  an  owner,  and 
with  respect  to  which  we  apprehend  that  a  person  w^ould  not  be  guilty 
of  larceny,  though  he  took  originally  animo  furandi,  that  is,  with  the 
intent,  not  to  take  a  partial  or  temporary  possession,  but  to  usurp  the 
entire  dominion  over  them  ;  and  the  previous  observations  have  refer- 
ence to  cases  in  which  the  original  possession  of  the  chattel  stolen  is 
with  the  consent  of  or  by  contract  with  the  owner.  But  any  doubt  on 
this  question  is  removed  by  what  is  said  by  Lord  Hale,  1  P.  C.  506  : 
"  If  A.  find  the  purse  of  B.  in  the  highway  and  take  and  carry  it  away, 
and  hath  all  the  circumstances  that  may  prove  it  to  be  done  ardnio 
furandi,  as  denying  or  secreting  it,  yet  it  is  not  felony.  The  like  in 
case  of  taking  of  a  wreck  or  treasure  trove,"  (citing  22  Ass.  99),  "  or  a 
waif  or  stray."  Lord  Hale  clearly  considers  that  if  lost  goods  are 
taken  originally  animo  furandi,  in  the  sense  a-bove  mentioned,  the 
taker  is  not  a  felon  ;  and  when  it  is  considered  that  by  the  common 
law,  larceny  to  the  value  of  above  twelve  pence  was  punishable  by 
death,  and  \hat  the  quality  of  the  act  in  taking  animo  furandi  goods 
from  the  possession  of  the  owner,  differs  greatly  from  that  of  taking 
them  when  no  longer  in  his  possession,  and  quasi  derelict,  in  its 
injurious  effect  on  the  interests  of  society  (the  true  ground  for  the 
punishment  of  crimes),  it  is  not  surprising  that  such  a  rule  should  be 
established,  and  it  is  founded  in  strict  justice  ;  for  the  cases  of  abstrac- 
tion of  lost  property  ])eing  of  rare  occurrence,  when  compared  with 
the  frequent  violations  of  property  in  the  possession  of  an  owner,  there 
was  no  need  of  so  severe  a  sanative,  and  tlie  civil  remedy  miglit  be 
deemed  amply  suflScient.  Hawkins,  B.  1,  ch.  19,  s.  3,  Curwood's  ed., 
says  :  "  Our 'law,  which  punislies  all  theft  with  death,  if  the  thing  stolen 
be"  above  the  value  of  twelve  pence,  and  with  corporal  punishment  if 


SECT.  II.]  REGINA   V.    TIIURBORN.  555 

under,  rather  chooses  to  deal  with  them  (c.  </.,  cases  of  finding,  and 
of  appropriating  by  bailees)  as  civil  than  criminal  oflcnces,  perhaps 
for  this  reason,  in  the  case  of^oods  lost,  because  the  part}'  is  not  much 
aggrieved  where  nothing  is  taken  but  what  he  had  lost  before."  It 
cannot  indeed  be  doubted  that  if  at  this  day  the  punishment  of  death 
was  assigned  to  larccnj'  and  usually  carried  into  effect,  the  approjjiia- 
tion  of  lost  goods  would  never  have  been  held  to  constitute  that  offence  ; 
and  it  is  certain  that  the  alteration  of  punishuieut  cannot  alter  the 
definition  of  the  offence.  To  prevent,  however,  the  taking  of  goods 
from  being  larceny,  it  is  essential  that  they  should  be  presumably-  loai  ; 
that  is,  that  they  should  be  taken  in  such  a  place  and  under  such  cir- 
cumstances as  that  the  owner  would  be  reasonably  presumed  by  the 
taker  to  have  abandoned  them,  or  at  least  not  to  know  where  to  lind 
them.  Therefore  if  a  horse  is  found  feeding  on  an  open  common  or  on 
the  side  of  a  public  road;  or  a  watch  found  apparently  hidden  in  a  hay- 
stack, the  taking  of  these  would  be  larceny,  because  the  taker  had  no 
right  to  presume  that  the  owner  did  not  know  where  to  find  them  ;  and 
consequently  had  no  right  to  treat  them  as  lost  goods.  In  the  present 
case  there  is  no  doubt  that  the  bank-note  was  lost,  the  owner  did  not 
know  where  to  find  it,  the.  prisoner  reasonably  believed  it  to  be  lost,  he 
had  no  reason  to  know  to  whom  it  belonged  ;  and  therefore,  though  he 
took  it  with  the  intent  not  of  taking  a  partial  or  temporary,  but  the 
entire  dominion  over  it,  the  act  of  taking  did  not,  in  our  opinion,  con- 
stitute the  crime  of  larceny.  Whether  the  subsequent  appropriation  of 
it  to  his  own  use  b}-  changing  it,  with  the  knowledge  at  that  time  that 
it  belonged  to  the  prosecutor,  does  amount  to  that  crime,  will  be  after- 
wards considered. 

It  appears,  however,  that  goods  which  do  fall  within  the  category  of 
lost  goods,  and  which  the  taker  justly  believes  to  have  been  lost,  may 
be  taken  and  converted  so  as  to  constitute  the  crime  of  larceny,  when 
the  part}'  finding  may  be  presumed  to  know  the  owner  of  them,  or 
there  is  any  mark  upon  them,  presumably  known  by  him,  by  which  the 
owner  can  be  ascertained.  Whether  this  is  a  qualification  introduced 
in  modern  times  or  which  always  existed,  we  need  not  determine.  It 
may  have  proceeded  on  the  construction  of  the  reason  of  the  old  rule, 
"quia  dominus  rerum  non  apparet,  ideo  cujus  sunt  incertum  est,"  and 
the  rule  is  held  not  to  apply  when  it  is  certain  who  is  the  owner ;  but 
the  authorities  are  many,  and  we  believe  this  quahfication  has  been 
generally  adopted  in  practice,  and  we  must  therefore  consider  it  to  be 
the  established  law.  There  are  many  reported  cases  on  this  subject, 
some  wliere  the  owner  of  the  goods  ma}'  be  presumed  to  be  known, 
from  the  circumstances  under  which  they  are  found;  amongst  these  are 
mentioned  the  cases  of  articles  left  in  hacliuey  coaches  by  passengers, 
which  the  coachman  appropriates  to  his  own  use,  or  a  pucket-book, 
found  in  a  coat  sent  to  a  tailor  to  be  repaired,  and  abstracted  and 
opened  by  him.  In  these  cases  the  appropriation  has  been  held  to  be 
larceny.     Perhaps    these   cases   might   be    classed   amongst   those  in 


556  EEGINA  V.   THURBORN.  [CHAP.    XHL 

which  the  taker  is  not  justifiecl  in  conchiding  that  the  goods  were  lost, 
because  there  is  little  doubt  he  must  have  believed  that  the  owner 
would  know  where  to  find  them  again,  and  he  had  no  pretence  to  con- 
sider them  abandoned  or  derelict.  Some  cases  appear  to  have  been 
decided  on  the  ground  of  bailment  determined  by  breaking  bulk, 
which  would  constitute  a  trespass,  as  Wynne's  case,  Leach  C.  C. 
460,  but  it  seems  difficult  to  apply  that  doctrine  which  belongs  to  bail- 
ment, where  a  special  property  is  acquired  by  contract,  to  any  case  of 
goods  merely  lost  and  found,  where  a  special  property  is  acquired  by 
finding. 

The  appropriation  of  goods  by  the  finder  has  also  been  held  to  be 
larceny  where  the  owner  could  be  found  out  by  some  mark  on  them,  as 
in  the  case  of  lost  notes,  checks,  or  bills,  with  the  owner's  name  upon 
them. 

This  subject  was  considered  in  the  case  of  Merry  v.  Green,  7  M.  & 
"W.  623,  in  which  the  Court  of  Exchequer  acted  upon  the  authority  of 
these  decisions  ;  and  in  the  argument  in  that  case  difficulties  were  sug- 
gested, whether  the  crime  of  larceny  could  be  connuitted  in  the  case  of 
a  marked  article,  a  check  for  instance,  with  the  name  of  the  owner 
on  it,  where  a  person  originally  took  it  up,  intending  to  look  at  it  and 
see  who  was  the  owner,  and  then,  as  soon  as  he  knew  whose  it  was, 
took  it  animo  furandi  ;  as,  in  order  to  constitute  a  larceny,  the  taking 
must  be  a  trespass ;  and  it  was  asked  when  in  such  a  case  the  trespass 
was  committed.  In  answer  to  that  inquiry  the  dictum  attributed  to 
me  in  the  Report  was  used :  that  in  such  a  case  the  trespass  must  be 
taken  to  have  been  committed,  not  when  he  took  it  up  to  look  at  it 
and  see  whose  it  was,  but  afterwards,  when  he  appropriated  it  to  his 
own  use  amino  furandi. 

It  is  quite  a  mistake  to  suppose,  as  Mr.  Greaves  has  done  (vol.  2, 
c.  14),  that  I  meant  to  lay  down  the  proposition  in  the  general  terms 
contained  in  the  extract  from  the  Report  of  the  case  in  7  M.  &  W., 
which,  taken  alone,  seems  to  be  applicable  to  every  case  of  finding 
unmarked,  as  well  as  marked  property.  It  was  meant  to  apply  to  the 
latter  only. 

The  result  of  these  authorities  is,  that  the  rule  of  law  on  this  sub- 
ject seems  to  be,  that  if  a  man  find  goods  that  have  been  actually  lost, 
or  are  reasonably  supposed  by  him  to  have  been  lost,  and  appropriates 
them  with  intent  to  take  the  entire  dominion  over  them,  really  believ- 
ing when  he  takes  them  that  the  owner  cannot  be  found,  it  is  not 
larceny.  But  if  he  takes  them  with  the  like  intent,  though  lost,  or 
reasonably  supposed  to  be  lost,  but  reasonably  believing  that  the  owner 
can  be  found,  it  is  larceny. 

In  applying  this  rule,  as  indeed  in  the  application  of  all  fixed  rules, 
questions  of  some  nicety  may  arise,  but  it  will  generally  be  ascertained 
whether  the  person  accused  had  reasonable  belief  that  the  owner  could 
be  found,  by  evidence  of  his  previous  acquaintance  with  the  ownership 
of  the  particular  chattel,  the  place  where  it  is  found,  or  the  nature  of 


SECT.  11.] 


REGINA   V.    PRESTON. 


557 


the  marks  upon  it.     In   some   cases  it  would  bo  apparent,  in  others 
appear  only  after  examination. 

It  would  probably  be  presumed  that  the  taker  would  examine  the 
chattel  as  an  honest  man  ougiit  to  do,  at  the  time  of  taking  it,  and  if 
he  did  not  restore  it  to  the  owner,  the  jury  might  conclude  that  he  took 
it,  when  he  took  complete  possession  of  it,  animo  furandi.  The  mere 
taking  it  up  to  look  at  it  would  not  be  a  taking  possession  of  the 
chattel. 

To  apply  these  rules  to  the  present  case  :  the  first  taking  did  not 
amount  to  larceny,  because  the  note  was  really  lost,  and  there  was  no 
mark  on  it  or  other  circumstance  to  indicate  then  who  was  the  owner, 
or  that  he  might  be  found,  nor  any  evidence  to  rebut  the  presumption 
that  would  arise  from  the  finding  of  the  note  as  proved,  that  he 
believed  the  owner  could  not  be  found,  and  therefore  the  original 
taking  was  not  felonious  ;  and  if  the  prisoner  had  changed  the  note  or 
otherwise  disposed  of  it  before  notice  of  the  title  of  the  real  owner,  he 
clearly  would  not  have  been  punishable ;  but  after  the  prisoner  was  in 
possession  of  the  note,  the  owner  became  known  to  him,  and  he  then  I 
appropriated  it  animo  furandi^  and  the  point  to  be  decided  is  whether  ' 
that  was  a  felony. 

Upon  this  question  we  have  felt  considerable  doubt. 

If  he  had  taken  the  chattel  innocently,  and  afterwards  appropriated 
it  without  knowledge  of  the  ownership,  itvwould  not  have  been  larceny  ; 
nor  would  it,  we  think,  if  he  had  done  so,  knowing  who  was  the  owner, 
for  he  had  the  lawful  possession  in  both  cases,  and  the  conversion 
would  not  have  been  a  trespass  in  either.  But  here  the  original  taking 
was  not  innocent  in  one  sense,  and  the  question  is  does  that  make  a 
difference?  We  think  not;  it  was  dispunishable  as  we  have  already 
decided,  and  though  the  possession  was  accompanied  by  a  dishonest 
intent,  it  was  still  a  lawful  possession  and  good  against  all  but  the  real 
owner,  and  the  subsequent  conversion  was  not  therefore  a  trespass  in 
this  case  more  than  the  others,  and  consequentl}'  no  larceny. 

We  therefore  think  that  the  conviction  was  wrong. ^ 


1^ 


a  4 


REGINA  V.   PRESTON. 

Crown  Case  Reserved.     1851. 

[Reported  5   Cox  C.  C.  390.] 

The  following  case  was  reserved  b}'  the  Recorder  of  Birmingham  :  — 
Michael  Preston  was  tried  before  me,  at  the  last  Michaelmas  Ses- 

1  Ace.  Reg.  V.  Scully,  1  Cox  C.  C.  189;  Reg.  v.  Dixon.  7  Cox  C.  C.  35;  Reg. 
V.  Shea,  7  Cox  C.  C.  147;  Reg.  v.  Christopher,  8  Cox  C.  C.  91  ;  Reg.  i;.  Clyde.  11 
Cox  C.  C.  103;  Reg.  v.  Deaves,  11  Cox  C.  C.  227  ;  Bailey  v.  State,  52  Ind.  462; 
Wolfiugton  V.  State,  53  Ind.  343  ;  State  v.  Dean,  49  la.  73.  —  En. 


558'  REGINA   V.    PRESTON.  [CHAP.  XIII. 

sions   for   the   borough   of  Birmingham,    upon    an   indictment  which 
charged   him   in  the    1st  count  with   stealing,   and   in  the    2d  count 
with° feloniously  receiving,   a  £50  note  of  the  Bank  of  England.     It 
was  proved  that  the  prosecutor,  Mr.  Collis,  of  Birmingham,  received 
the  note  in  question,  with  others,  on  Saturday,  the  18th  of  October, 
from  a  Mr.  Ledsam,  who,  before  he  handed  it  to  the  prosecutor,  wrote 
on  the  back  of  it  the  words,  "  Mrs.  CoUis."     It  was  further  proved  that 
Collis  was  a  very  unusual  surname  in  Birmingham,  and  almost,  if  not 
quite  confined  to  the  family  of  the  prosecutor,  a  well  known  master 
manufactnrer.     About  four  or  five  o'clock  the  same  afternoon  the  prose- 
cutor  accidentally  dropped  the   notes  in  one  of  the  public  streets  of 
Birmingham,    and    immediately  gave   information  of  his   loss  to  the 
police,  and  also  caused  handbills,  offering  a  reward  for  their  recovery, 
to  be  printed   and  circulated  about  the  town.     On  Monday  the  20th, 
about  three  o'clock  in    the   afternoon,   the  prisoner,    who   had   been 
living  in  Birmingham  fourteen  years,  and  keeping  a  shop  there,  went 
to  one  of  the  police  stations,  and  inquired  of  a  policeman  if  there  was 
not  a  reward  publicly  offered  for  some  notes  that  had  been  lost,  and 
whether  their  numbers  were  known,  stating  that  he  was  as  likely  as 
any  person  to  have  them  offered  to  him,  and  if  he  heard  anything  of 
them  he  would  let  the  poUce  know.     He  also  inquired  if  the  policeman 
could  give  him  a  description  of  the  person  who  was  supposed  to  have 
found  Ihem,  and  the  policeman  gave  him  a  written  description  of  such 
person,  who  was  described  therein  as  a  tall  man.     Afterwards,  between 
three  and  four  o'clock  on  the  same  afternoon,  the  prisoner  went  to  the 
shop   of  Mr.    Nickley,    in    Birmingham,    and,    after   inquiring   if  he 
(Nicklc}')    had   heard   of  the  loss  of  a  £50  note,  stated  that  he  (the 
prisoner)  thought  he  knew  parties  who  had  found  one  ;  and  he  asked 
Nickley  whether  the  finders  would   be  justified  in  appropriating  it  to 
their  own  use,  to  which  Nickley  replied  that  they  would  not.     At 
four  o'clock  the  same  afternoon   the  prisoner  changed  the  note,  and 
was,  later  in  the  same  evening,  found  in  possession  of  a  consider- 
able  quantity   of  gold,    with   regard   to  which  he  gave  several  false 
and   inconsistent    accounts.      He    was   then   taken  into  custody,  and 
on  the  following  day,  October  21,  stated  to  a  constable    that  when 
he  was  alone  in  his  own  house  on  Sundaj',  a  tall  man,  whom  he  did 
not  know,  came  in  and  offered  him   a  £50  note,    for  which  he  (the 
prisoner)  gave   him    fifty  sovereigns.     The    police   officers    previously 
told  the  prisoner  that  they  were  in  possession  of  information  that  one 
Tay,  who  was  known  to  the  prisoner,  had  found  the  note,  but  Tay  was 
not  called,  nor  was  any  evidence  given  as  to  the  part  (if  any)  which 
he  took  in  the  transaction.     Upon  these  facts  I  directed  the  jury  that 
the   important   question   for  them   to  consider  was,  at  what  time  the 
prisoner  first  resolved  to  appropriate  the  note  to  his  own  use.     If  they 
arrived  at  the  conclusion  that  the  prisoner  either  knew  the  owner,  or 
reasonably  believed  that  the  owner  could  be  found  at  the  time  when  he 
first  resolved  to  appropriate  it  to  his  own  use,  that  is,  to  exercise  com- 


SECT.  U.J  REGINA   V.   PRESTON.  559 

plete  dominion  over  it,  then  he  was  guilty  of  larceny.  If,  on  the  other 
hand,  he  had  formed  the  resolution  of  ai)proi)riating  it  to  his  own  use 
before  he  knew  tlie  owner,  or  had  a  reasonable  belief  that  the  owner 
could  be  found,  tlien  he  was  not  guilt}'  of  larceny.  I  also  told  the  jury 
that  tliere  was  no  evidence  of  any  other  person  having  possession  of  the 
note  after  it  was  lost,  except  the  prisoner,  but  that  even  though  the 
prisoner  might  not  be  the  original  finder,  still,  if  he  were  the  first 
person  who  acted  dishonestl}'  willi  I'egard  to  it,  and  if  he  began  to  act 
dishonestl}'  b}^  forming  the  resolution  to  keep  it  for  his  own  use  alter 
he  knew  the  owner,  or  reasonably  believed  that  the  owner  could  be  found, 
he  would  be  guilt}'  of  larceny.  The  jury  found  the  prisoner  guilty 
upon  the  1st  count,  and  I  request  the  opinion  of  the  judges  as  to 
the  validity  of  the  conviction.  The  prisoner  was  discharged  on  the 
recognizances  of  himself  and  two  sureties,  to  appear  and  receive 
judgment  at  the  next  sessions. 

JBittlestoii,^  for  the  Crown.  The  case  of  R.  v.  Thurborn  was  brought 
under  the  consideration  of  the  Recorder ;  and  construing  his  direction 
with  reference  to  tlie  facts  stated,  it  does  in  substance  follow  the  rule 
there  laid  down.  It  only  means  that  the  prisoner  would  be  guilty  of 
larceny  if,  when  he  first  took  complete  possession  of  the  note  animo 
fanindi,  he  then  knew  or  had  the  means  of  knowing  the  owner. 
[Aldeksox,  B.  —  The  direction  does  not  exclude  the  supposition  that 
the  prisoner  in  the  first  instance  received  the  note  with  an  honest 
intention,  but  afterwards  altered  his  mind,  and  in  a  day  or  two  resolved 
to  appropriate  it  to  his  own  use.  But  my  brother  Parke,  in  Thurborn's 
case,  decided  that  the  dishonest  intention  must  exist  as  soon  as  the 
finder  has  taken  the  chattel  into  his  possession  so  as  to  know  what 
it  is.]  It  is  conceded  that  the  very  first  moment  of  taking  is  not 
that  at  which  the  animus  furandi  and  knowledge  of  the  owner  must 
exist  to  constitute  larceny  ;  because  the  chattel  must  be  taken  into  the 
hand  to  ascertain  what  it  is.  The  original  possession,  therefore,  must 
necessarily  be  lawful  in  every  case  ;  and  if  the  dishonest  intention 
arising  at  the  next  minute  may  make  the  finder  guilty  of  larceny,  why 
may  not  the  same  dishonest  intention  arising  afterwards  have  the  same 
effect?  What  is  a  proper  time  for  examining  the  thing  may  vary  in 
different  cases;  and,  if  a  man  takes  time  to  make  inquiries,  for  the 
purpose  of  satisfiying  himself  whether  he  can  keep  the  chattel  without 
risk  of  discovery,  and  ultimately  resolves  to  approi)riate  it,  is  he  to  be 
held  not  guilty  of  larceny  because  he  did  not  immediately  make  up  his 
mind  to  deprive  the  owner  of  it?  It  is  stated  generally  in  the  text- 
books (1  Bl.  Com.  205,  5th  ed.)  that  the  finder  of  lost  goods  has  a 
special  property  in  them  ;  and  so,  according  to  Armory  r.  Dclamirie 
(1  Stra.  505),  he  has  against  all  but  the  true  owner ;  but  as  against  the 
true  owner  he  has  no  property  whatever;  and  it  is  submitted,  at  all 
events  with  regard  to  marked  property,  that  as  between  the  finder  and 

1  The  argument  of  O'Brien  for  the  prosecution  is  omitted. 


560  EEGINA   V.    PRESTON.  [CHAP.  XIII. 

the  loser,  the  possession  of  the  former  is,  in  law,  that  of  the  latter,  so 
long  as  the  latter  intends  to  act  honestly.  He  holds  merely  for  the 
true  owner ;  he  had  a  bare  custody :  but  as  soon  as  he  resolves  to 
appropriate  the  goods  to  his  own  use  he  then  converts  that  lawful 
custody  into  an  unlawful  possession ;  he  commits  a  trespass ;  and 
IS  guilty  of  larcen}',  according  to  that  class  of  cases  where  the  owner, 
by  delivering  goods  to  the  prisoner,  does  not  part  with  the  possession, 
but  gives  him  the  charge  or  custody  of  them  only.  [Alderson,  B.  — 
What  do  you  &a.y  to  that  part  of  the  direction  which  supposes  that  the 
prisoner  was  not  the  original  finder?]  It  makes  no  difference  whether 
the  prisoner  himself  picked  up  the  lost  note,  or  whether  the  person 
who  did,  brought  it  to  him  and  informed  him  of  all  the  circumstances. 
That  intermediate  person  might  act  with  perfect  honest}' ;  and  the 
prisoner  receiving  it  under  those  circumstances  would  be  in  the 
situation  of  a  finder.  [Martin,  B.  —  Suppose  a  man  takes  an  umbrella 
b}"  mistake,  and,  after  keeping  it  for  a  few  days,  finds  the  owner,  but 
does  not  return  it;  is  there  a  felonious  taking?  Lord  Campbell, 
C.  J.  —  You  must  contend  that  there  is.]  Yes,  there  would  be  no  change 
in  the  possession  until  the  dishonest  intention  arose.  [Lord  Campbell, 
C.  J.  —  Can  there  be  a  mental  larceny?  Alderson,  B.  —  There  must  be 
a  taking,  and  it  must  be  a  taking  animo  fiirandi  ;  but  the  taking  and 
the  intent  are  distinct  things.]  In  the  cases  of  carriers,  where  the 
bailment  is  determined  by  breaking  bulk,  there  is  in  truth  no  fresh 
taking.  The  carrier  has  possession  of  all  the  goods  delivered  to  him 
for  the  purpose  of  carriage ;  but  when  he  begins  to  deal  dishonestly 
with  them  there  is  a  constructive  taking;  and  Parke,  B.,  from  the 
observation  which  he  makes  on  Wynne's  case,  in  Merrj-  v.  Green, 
seems  to  have  thought  so. 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  this  conviction  can- 
not be  supported.  Larceu}'  supposes  a  taking  animo  fur andi.  There 
must  always  be  a  taking  ;  but  in  the  present  case  it  is  quite  consistent 
with  the  direction  of  the  learned  Recorder  that  the  prisoner  might  be 
guilty  of  larceny  though,  when  he  took  possession  of  it,  with  a  full 
knowledge  of  the  nature  of  the  chattel,  he  honestly  intended  to  return 
it  to  the  owner  whensoever  he  should  be  found ;  because  he  puts 
it  that  the  important  question  is,  at  what  time  the  prisoner  first 
resolved  to  appropriate  it  to  his  own  use.  But  when  was  the  taking  ? 
It  is  said  that  whenever  he  changed  his  mind,  and  formed  the  dishonest 
purpose  of  appropriating  the  note  to  his  own  use,  that  then  he  took  it 
constructively  from  the  possession  of  the  owner;  but  that  dishonest 
purpose  may  have  first  come  into  his  mind  when  he  was  lying  in  bed 
at  a  distance  of  many  miles  from  the  place  where  the  note  was.  It 
seems  to  me  that  that  operation  of  the  mind  cannot  be  considered  a 
taking,  and  that,  as  there  was  no  taking  except  the  original  taking, 
which  might  have  been  lawful,  the  conviction  must  be  reversed.  It  is 
unnecessary  to  go  into  authorities  upon  this  subject,  after  the  elaborate 
judgment  of  m^-  brother  Parke  in  Thurborn's  case. 


SECT.  II.]  KEGINA   v.   WEST.  561 

Alderson,  B.  In  order  to  constitute  larceny,  there  must  be  a  taking, 
as  well  as  an  intention  to  steal.  The  dilliculty  I  feel  in  this  ease  is  To 
know  how  a  taking,  honest  at  first,  can  be  converted  into  a  dishonest 
taking  by  the  subsequent  alteration  of  intention.  It  is  clear,  in  this 
case,  that  the  learned  Recorder  left  it  open  to  the  jury  to  convict  the 
prisoner,  even  if  they  thouglit  that  at  Crst  he  took  tlie  note  hon- 
estly, but  that  he  afterwards  changed  his  mind,  then  knowing  the 
owner ;  and  it  is  argued  that  the  formation  of  the  dishonest  intention 
alters  the  character  ol"  the  possession,  though  the  taking  may  have 
been  a  week  before ;  but  I  think  that  that  is  a  degree  of  reGnement 
which  would  destroy  the  simplieity  of  the  criminal  law. 

The  other  judges  concurred. 

Conviction  quashed.^ 


REGINA  V.  WEST. 
Crown  Case  Reserved.     1854. 

[Reported  Dearsley  C.  C.  402.] 

Jervis,  C.  J.*  The  question  is  whether,  under  the  circumstances 
stated  in  this  case,  the  prisoner  was  properly  convicted  of  larceny, 
and  we  are  all  of  opinion  that  she  was  properly  convicted.  The 
prisoner  keeps  a  stall  in  the  Leicester  market.  The  prosecutor  went 
to  that  stall,  left  his  purse  there,  and  went  away.  The  purse  was 
pointed  out  to  the  prisoner  by  another  person,  and  she  then  put  it  in 
her  pocket,  and  treated  it  as  her  own,  and  on  the  prosecutor  returning 
to  the  stall  and  asking  for  the  purse,  she  denied  all  knowledge  of  it. 
Two  questions  were  left  to  the  jury :  first,  did  the  prisoner  take  the 
purse  knowing  that  it  was  not  her  own,  and  intending  to  appropriate 
it  to  her  own  use?  This  the  jury  said  she  did.  Secondly,  did  the 
prisoner  then  know  who  was  the  owner  of  the  purse?  This  the  jury 
said  she  did  not.  If  there  had  been  any  evidence  that  the  purse 
and  its  contents  were  lost  property,  properly  so  speaking,  and  the 
jury  had  so  found,  the  jury  ought  further  to  have  been  asked  whether 
the  prisoner  had  reasonable  means  of  finding  the  owner,  or  rcasonablv 
believed  that  the  owner  could  not  be  found  ;  but  there  is  in  this  case 
no  reason  for  supposing  that  the  property  was  lost  at  all,  or  that  the 
prisoner  thought  it  was  lost.  On  the  contrary,  the  owner,  having  left 
it  at  the  stall,  would  naturally  return  there  for  it  when  he  missed  it. 

There  is  a  clear  distinction  between  property  lost  and  property 
merely  mislaid,  put  down,  and  left  by  mistake,  as  in  this  ease,  under 
circumstances  which  would  enable  the  owner  to  know  the  place  where 

1  Ace.  Reg  V.  Matthews,  12  Cox  C.  C.  489.  But  see  Beattv  c  .^t:itf>^  r,|  Miss. 
18  — Ed. 

^  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 

36 


562  REGINA  V.   KOWE.  [CHAP.  XIII. 

lie  had  left  it,  and  to  which  he  would  naturally  return  for  it.     The 
question  as  to  possession  by  finding,  therefore,  does  not  arise. 
The  other  learned  judges  concurred.^  Conviction  affirmed. 


REGINA  V.  ROWE. 
Crown  Case  Reserved.     1859. 

[Reported  Bell  C.  C.  93.-  ] 

The  following  case  was  reserved  by  the  Chairman  of  the  Glamorgan- 
shire Quarter  Sessions ;  — 

At  the  Glamorganshire  Midsummer  Quarter  Sessions,  1858,  William 
Rowe  was  indicted  for  stealing  16  cwt.  of  iron  of  the  goods  and  chat- 
tels of  The  Company  of  Proprietors  of  the  Glamorganshire  Canal 
Navigation. 

It  appeared  by  the  evidence  that  the  iron  had  been  taken  from  the 
canal  by  the  prisoner,  who  was  not  in  the  employ  of  the  Canal  Com- 
pany, while  it  was  in  process  of  being  cleaned.  The  manager  of 
the  canal  stated  that,  if  the  property  found  on  such  occasions  in  the 
canal  can  be  identified,  it  is  returned  to  the  owner.  If  it  cannot,  it  is 
kept  by  the  company. 

It  was  objected  that,  as  the  Canal  Company  are  not  carriers,  but  only 
find  a  road  for  the  conveyance  of  goods  by  private  owners,  the  property- 
was  not  properly  laid  as  that  of  the  Canal  Company'.  The  prisoner 
was  convicted,  and  sentenced  to  two  calendar  months'  imprisonment  in 
the  House  of  Correction  at  Cardiff,  but  was  released  on  bail. 

This  case  was  considered,  on  22d  November,  1858,  by  Pollock, 
C.  B.,  "Wightman,  J.,  Williams,  J.,  Channell,  B.,  Byles,  J.,  and 
Hill,  J. 

No  counsel  appeared.  Car.  adv.  vult. 

On  5th  February,  1859,  the  judgment  of  the  court  was  given  by  — 
Pollock,  C.  B.  The  judges  who  have  considered  this  case  are  unan- 
imously of  opinion  that  the  conviction  should  be  affirmed.  The  case 
finds  that  some  iron  had  been  stolen  by  the  prisoner  from  the  canal 
while  the  canal  was  in  process  of  cleaning,  and  while  the  water  was 
out.  The  prisoner  was  not  in  the  employ  of  the  Canal  Company,  but 
a  stranger  ;  and  the  property  of  the  company  in  the  iron  before  it  was 
taken  away  b\'  the  prisoner  was  of  the  same  nature  as  that  which  a 

1  Acr.  TJe^.  v.  Coffin,  2  Cox  C.  C  44  ;  Reg.  r.  Tierce,  6  Cox  C.  C.  117  ;  Reg.  i-. 
Moore.  8  Cox  C.  C.  416;  State  v.  McCann,  19  Mo.  249;  People  v.  McGarren,  17 
Wend.  460;  Lawrence  v.  State,  1  Humph.  228.  See  McAvoy  v.  Medina,  U  All.  548; 
B.  c.  1  Gray's  Cases  on  Prop.  378.  —  Ed. 

2  s.  c.  1  Gray's  Case.s  on  I'roy.  375. 


SECT.  II.]  COMMONWEALTH   V.   TITUS.  5Co 

landlord  has  in  goods  left  behind  by  a  guest.  Property  so  left  is  in 
the  possession  of  the  landlord  for  the  purpose  of  delivering  it  up  to 
the  true  owner ;  and  he  has  suffieieut  possession  to  maintain  an  indict- 
ment for  larceny.  1  Conviction  affirmtd. 


COMMONWEALTH  v.   TITUS. 
Supreme  Judicial  Court  of  Massachusetts.     1871. 

[Rtporttd  116  Massachusetts,  42.] 

Indictment  against  Lucian  M.  Titus  and  Elbridge  F.  Ilorr,  charging 
them  jointly  with  the  larceny  of  certain  articles  of  personal  property 
alleged  to  be  the  property  of  Nancy  Meachani. 

Trial  in  the  Superior  Court,  before  Aldrich,  J.,  who  allowed  the 
following  bill  of  exceptions:  "The  defendant  Horr  pleaded  guilty. 
Titus  pleaded  not  guilty.  Upon  his  trial  the  government  introduced 
evidence  tending  to  prove  the  ownership  of  the  property  as  alleged  in 
the  indictment ;  and  that  the  owner,  while  riding  on  one  of  the  puljlic 
highways  in  Athol,  lost  the  wallet  or  travelling  bag  containing  the 
articles  mentioned  in  the  indictment ;  that  the  defendants,  passing 
along  the  same  highway  not  long  after  the  loss  of  the  bag,  discovered 
it,  picked  it  up,  and  afterwards  appro[)riated  the  contents  of  the  bag  to 
their  own  use,  and  destroyed  the  bag  by  cutting  it  in  pieces  and  con- 
cealing the  same  in  a  wood-lot  remote  from  the  place  of  finding. 

''  As  bearing  upon  the  question  of  the  intent  with  which  the  defend- 
ant Titus  originally  took  the  bag  and  its  contents,  the  government, 
against  his  objection,  was  permitted  to  introduce  evidence  to  show 
what  Titus  said  and  did  about  the  property  and  his  possession  of  it, 
subsequently  to  the  original  finding  and  taking.  This  evidence  was 
offered  by  the  government  and  admitted  by  the  court  for  the  single 
purpose  of  proving,  so  far  as  it  tended  to  do  that,  the  intent  with 
whicli  Titus  originally  took  the  property  into  his  possession  at  the  time 
of  finding  it.  And  the  jury  were  instructed  that  they  could  properly 
make  no  other  use  of  this  evidence  as  against  the  defendant. 

"  The  defendant's  counsel  asked  the  court  to  rule  that  lost  property 
cannot  be  the  subject  of  larcen}-.  This  ruling  the  court  declined  to 
give  ;  but  did  instruct  the  jury  that  to  authorize  a  conviction  of  the 
defendant  Titus,  they  must  be  convinced  by  the  evidence  in  the  case 
beyond  all  reasonable  doubt :  first,  that  at  the  time  of  the  iinding  of 
the  property  by  the  defendant  and  the  taking  of  it  into  his  possession 
he  had  a  felonious  intent  of  appropriating  the  property  to  his  own  use 
and  depriving  the  owner  of  it ;  secondly,  that  he  then   know  who  the 

1  See  Elwes  v.  Brigg  Gas  Co.,  33  Ch.  D.  5G2;  Gooilard  v.  WiucLell  (la.),  52  N.  W. 
1124.  —  Ei>. 


564 


COMMONWEALTH   V.    TITUS. 


[chap.  XIII. 


l^ 


People  V.  Cogdell,   1  Hill,  94  ; 
Tyler  v.  People,  Breese,  227 ; 


owner  was,  or  then  had  reasonable  means  of  knowing  or  ascertaining 
who  the  owner  was. 

"  The  court  further  instructed  the  jury  that  if  the  evidence  failed  to 
satisfy  them  beyond  ever^-  reasonable  doubt  that,  at  the  time  of  finding 
the  property,  Titus  knew  or  had  reasonable  means  of  knowing  who  the 
owner  was  ;  or  if  they  should  lind  that  he  did  not  originally  take  the 
property  with  the  felonious  intent  of  converting  it  to  his  own  use,  but 
formed  such  purpose  afterwards,  it  would  be  their  duty  to  acquit  him. 

"  To  the  admission  of  the  evidence  objected  to,  the  refusal  to  rule 
as  requested,  and  the  foregoing  instructions,  the  defendant  objected. 
Other  and  appropriate  instructions,  not  objected  to,  in  relation  to  the 
nature  of  the  offence  charged,  and  in  relation  to  the  evidence,  the 
burden  of  proof,   &c.,  were  given. 

"The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged 
exceptions." 

F.  T.  Blackmer,  for  the  defendant,  cited  2  East  P.  C.  663  ;  Regina 
V.  Wood,  3  Cox  C.  C.  453  ;  Regina  v.  Preston,  2  Den.  C.  C.  353  ;  s.  c. 
5  Cox  C.  C.  390  ;  Regina  v.  Dixon,  7  ib.  35  ;  Regina  v.  Christopher, 
8  ib.  91;  Regina  v.  Moore,  ib.  416;  Regina  v.  Clyde,  11  ib.  103; 
People  I'.  Anderson,  14  Johns.  294  ; 
Porter  v.  State,  Mart.  &  Yerg.  226  ; 
State  V.  Weston,  9  Conn.  527. 

C.  R.  Train^  Attorney  General,  for  the  Commonwealth,  cited,  in 
addition  to  some  of  the  above  cases,  Regina  v.  Thurborn,  1  Den.  C.  C. 
387;  2  Bennett  &  Heard's  Lead.  Crim.  Cas.  (2d  ed.)  409,  417; 
Regina  v.  Shea,  7  Cox  C.  C.  147;  Commonwealth  v.  Mason,  105 
Mass.  163. 

Gray,  C.  J.  The  rulings  and  instructions  at  the  trial  were  quite  as 
favorable  to  the  defendant  as  the  great  weight,  if  not  the  unanimous 
concurrence,  of  the  cases  cited  on  either  side  at  the  argument  would 
warrant. 

The  finder  of  lost  goods  may  lawfully  take  them  into  his  possession, 
and  if  he  does  so  without  any  felonious  intent  at  that  time,  a  subse- 
quent conversion  of  them  to  his  own  use,  by  whatever  intent  that 
conversion  is  accompanied,  will  not  constitute  larceny.  But  if,  at  the 
time  of  first  taking  them  into  his  possession,  he  has  a  felonious  intent 
to  appropriate  them  to  his  own  use  and  to  deprive  the  owner  of  them, 
and  then  knows  or  has  the  reasonable  means  of  knowing  or  ascertain- 
ing, by  marks  on  the  goods  or  otherwise,  who  the  owner  is,  he  may  be 
found  guilty  of  larceny. 

It  was  argued  for  the  defendant  that  it  would  not  be  sufficient  that 
he  might  reasonably  have  ascertained  who  the  .owner  was  ;  that  he 
must  at  least  have  known  at  the  time  of  taking  the  goods  that  he  had 
reasonable  means  of  ascertaining  that  fact.  But  the  instruction  given 
did  not  require  the  jury  to  be  satisfied  merely  that  the  defendant  might 
have  reasonably  ascertained  it,  but  that  at  the  time  of  the  original 
taking  he  either  knew  or  had  reasonable  means  of  knowing  or  ascer- 


AA 

SECT.  II.]  ^reginAv.(finlaysonj  5G5 

taining  who  tlie  owner  was.  Such  a  finding  would  clearly  Imply  that 
he  liad  such  means  wilhin  his  own  knowledge,  as  well  as  williin  his 
own  possession  or  reach,  at  that  time. 

It  was  further  argued  tliat  evidence  of  acts  of  the  defendant,  sul)se- 
quent  to  the  original  finding  and  taking,  was  wn;ngly  admitted,  because 
such  acts  might  have  been  the  result  of  a  purpcse  subsequently  formed. 
But  the  evidence  of  the  subsequent  acts  and  deelarations  of  the 
defendant  was  otfered  and  admitted,  as  the  bill  of  exceptions  distinctly 
states,  for  the  single  purpose  of  proving,  so  far  as  it  tended  to  do  so, 
the  intent  with  which  the  defendant  originall}'  took  the  pro[)erty  into 
his  possession  at  the  time  of  finding  it.  And  the  bill  of  exceptions 
does  not  state  what  the  acts  and  declarations  admitted  in  evidence 
were,  and  consequently  does  not  show  that  any  of  them  had  no  tendency 
to  prove  that  intent,  nor  indeed  that  any  acts  were  i)roved  except  such 
as  accompanied  and  gave  significance  to  distinct  admissions  of  the 
intent  with  which  the  defendant  originally  took  the  goods. ^ 

Exce2Hions  overruled. 


REGINA   V.   FIXLAYSON. 
Supreme  Court  of  New  South  Wales.     1864. 

[Reported  3  New  South   Wales  S.  C.  Reports,  .301.] 

Stephen,  C.  J.''  It  appears  that  the  prisoner  was  driving  a  mob  of 
horses,  when  the  horse  in  question  (a  branded  animal,  the  ownership, 
therefore,  of  which  was  ascertainable  in  the  neighborhood)  joined  the 
others  —  it  being  near  the  owner's  run.  "Whether  the  prisoner  (who 
was  two  or  three  hundred  yards  behind,  having  assistants  ahead  or  at 
the  side)  saw  at  the  time  that  this  horse  had  joined  his  own  horses,  did 
not  appear.  But  it  was  proved  that  the  next  morning,  as  the  custom 
was,  the  prisoner  counted  over  the  entire  mob,  and  then  drove  the 
whole  on  together  to  their  destination.  The  learned  judge,  in  sub- 
stance, told  the  jury  that  assuming  this  to  be  a  case  of  finding,  yet  the 
prisoner  need  not  have  formed  the  intent  to  appropriate  the  animal  at 
the  moment  of  its  junction  with  the  others,  or  of  the  then  continued 
driving  onward  of  the  horses,  but  that  it  was  necessary  to  show  that 
such  intent  existed  at  the  moment  of  taking.  He  left  the  question  to 
them,  therefore,  whether  the  intent  existed  when  the  prisoner  first  did 
some  act,  or  gave  some  direction  h}-  which  he  treated  the  horse  as  part 
of  his  own  mob  of  horses,  or  incorporated  it  therewith.  T  am  of 
opinion  that  this  direction  was  right ;    and  it  seems  to  be  doubtful 

1  Ace.  Rountree  v.  State.  58  Ala.  381  ;  Griccgs  v.  State,  58  Ala.  425 ;  State  rv  Levy, 
23  Minn.  104 ;  State  v.  Clifford,  14  Nev.  72  ;  Baker  v.  State,  29  Oh.  St.  184  ;  Brook."  r 
State,  35  Oh.  St.  46. —  Ed. 

^   The  opinion  only  i.s  given  ;  it  sufficiently  states  the  ca.'»e. 


566  EEGINA   V.   ASHWELL.  [CHAP.  XIII. 

whether  the  prisoner's  case  was  one  of  finding  at  all.  If  it  merely 
straved,  it  was  not  lost,  and  could  not  therefore  be  found.  But  it 
appears  that  the  next  morning  the  prisoner  counted  the  horses,  and  he 
therefore  then  saw  this  one  among  them,  and  determined  to  take  pos- 
session of  it.  By  the  same  act,  he  took  possession,  and  determined 
to  appropriate  it. 

Wise,  J.,  concurred.  Convictioti  sustained} 


REGINA  V.   ASHWELL. 
Crown  Case  Reserved.     1885, 

[Reported  16  Cox  C.  C.  1.] 

Case  reserved  for  the  opinion  of  the  court  by  Denman,  J.,  at  the 
January  Assizes,  1885,  for  the  county  of  Leicester,  which  stated  the 
following  facts  :  — 

On  the  2M  of  January,  1885,  Thomas  Ashwell  was  tried  for  the 
larceny  of  a  sovereign,  the  money  of  Edward  Keogh. 

Keogh  and  Ashwell  met  at  a  public  house  on  the  9th  of  January. 

At  about  eight  p.  m.  Ashwell  asked  Keogh  to  go  into  the  yard,  and 
when  there  requested  Keogh  to  lend  him  a  shilling,  saying  tliat  he  had 
money  to  draw  on  the  morrow,  and  that  then  he  would  repay  him. 
Keogii  consented,  and  putting  his  hand  into  his  pocket,  pulled  out 
what  he  believed  to  be  a  shilUng,  but  what  was  in  fact  a  sovereign,  and 
handed  it  to  Ashwell,  and  went  home,  leaving  Ashwell  in  the  yard. 
About  nine  the  same  evening  Ashwell  obtained  change  for  the  sovereign 
at  another  public  house. 

At  5.20  the  next  morning  (the  10th)  Keogh  went  to  Ashwell's  house 
and  told  him  that  he  had  discovered  the  mistake,  whereupon  Ashwell 
denied  having  received  the  sovereign,  and  on  the  same  evening  he  gave 
false  and  contradictory  accounts  as  to  where  he  had  become  possessed 
of  the  sovereign  he  had  changed  at  the  second  public  house  on  the 
night  before.  But  he  afterwards  said,  "  I  had  the  sovereign  and  spent 
half  of  it,  and  I  sha'n't  give  it  him  back,  because  I  only  asked  him  to 
lend  me  a  shilling." 

3Ir.  Sills,  for  the  prisoner,  submitted  that  there  was  no  evidence  of 
larceny,  no  taking,  no  obtaining  by  trick  or  false  pretence,  no  evidence 
that  the  prisoner  at  the  time  he  received  the  sovereign  knew  it  was 
not  a  shilling.  He  referred  to  Regina  v.  Middleton,  L.  Rep.  2  C.  C.  R. 
43,  45. 

Mr.  A.  K.  Loyd,  for  the  prosecution,  called  ray  attention  to 
Stephen's  Criminal  Law  Digest,  art.  299,  and  to  the  cases  relating  to 
larceny  of  property  found. 

I  declined  to  withdraw  the  case  from  the  jury,  thinking  it  desirable 

1  Ace.  Reg.  V.  Riley,  6  Cox  C  C.  88;  Dears.  149,  m/ra.— Ed. 


^F'CT.  11.]  REGINA   V.   ASinVELL. 


567 


that  tlie  ix;int  raised  should  he  decided  by  the  Court  of  Criminal  Appeal 
The  passage  in  Stei)hen's  Digest  referred  to  is  as  follows  :  "  Theft  .nay 
be  ooinmitlfd  by  convertiuo;  proportv  which  the  owner  has  given  to  the 
offender  under  a  mistake  whidi  the  offender  lias  not  caused,  but  which 
he  knows  at  the  time  when  it  is  made,  and  of  which  he  fraudulently 
takes  advantage,  liut  it  is  doubtful  whether  it  is  theft  frainhilentlv  to 
convert  property  given  to  the  person  comerting  it  under  a  mistake  of 
which  tliat  person  was  not  aware  when  he  received  it." 

The  jury  found  tluit  the  prisoner  did  not  know  that  it  was  a  sovcrei-rn 
at  the  time  lie  received  it,  but  said  they  were  unanimouslv  of  opinion 
that  the  prosecutor  parted  with  it  under  the  mistaken  belief  that  it  was 
a  shilling,  and  that  the  prisoner,  having  soon  after  he  received  it  dis- 
covered that  it  was  a  sovereign,  could  have  easily  restored  it  to  the 
prosecutor,  but  fiandulently  appropriated  it  to  his  own  use  and  denied 
the  receipt  of  it,  knowing  that  the  prosecutor  had  not  intended  to  part 
with  the  possession  of  a  sovereign,  but  only  of  a  shilling.  Tliev  added 
that,  if  it  were  competent  to  them,  consistently  with  these  (indiiigs  and 
with  the  evidence,  to  find  the  prisoner  guilty,  they  meant  to  do  so. 

I  entered  a  verdict  of  guilty,  but  admitted  the  prisoner  to  bail,  to 
come  up  for  judgment  at  the  next  assizes  if  this  court  should  think  that 
upon  the  above  facts  and  findings  the  prisoner  could  properly  be  found 
guilty  of  larceny. 

Ifarch  21.  Before  Lord  Coleridge,  C.  J.,  Grove,  Lopes,  Stephen, 
and  Cave,  JJ.' 

Jttne  13.  This  case  was  reargued  before  the  followinjr  learned 
judges:  Lord  Coleridge,  C.  J.,  Grove  and  Denman,  JJ..  Pollock,  V,., 
Field,  J..  Iluddloston.  B.,  Manistv,  Hawkins,  Stephen,  .Alathew  Cave' 
Day,  Smith,  and  Wills,  ,hJ. 

Smith,  J.,  read  the  following  judgment:  The  prisoner  in  this  case 
was  indicted  for  the  larceny  of  a  sovereign,  the  moneys  of  Edward 
Keogh.  The  material  facts  are  as  follows:  Keogh  handed  to  the 
prisoner  the  sovereign  in  question,  believing  it  was  a  shilling  and  not 
a  sovereign,  upon  the  terms  that  the  prisoner  should  hand  back  a  shil- 
ling to  him  when  he  (the  prisoner)  was  paid  his  wages.  At  the  time 
the  sovereign  was  so  handed  to  the  prisoner  he  honestly  believed  it  to 
be  a  shilling.  Some  time  afterwards  the  prisoner  discovered  that  the 
coin  he  had  received  was  a  sovereign  and  not  a  shilling,  and  then  and 
there  fraudulently  ai)propriated  it  to  his  own  use.  Ls  this  larceny  at 
common  law  or  by  statute?  To  constitute  the  crime  of  larceny  at 
common  law,  in  my  judgment,  there  must  be  a  taking  and  carrving 
away  of  a  chattel  against  the  will  of  the  owner,  and  at  the  time  of  sueh 
taking  there  must  exist  a  felonious  intent  in  the  mind  of  the  taker. 
If  one  or  both  of  the  above  elements  be  absent,  there  cannot  be  larceny 
at  common  law.  The  taking  must  be  under  such  circumstances  as 
would  sustain  an  action  of  trespass.     If  there  be  a  bailment  or  delivery 

^  Arguments  of  counsel  are  omitted. 


568 


REGINA   v.    ASHWELL.  [CHAP.  XIII. 


of  the  chattel  by  the  owner,  inasmuch  as,  among  other  reasons,  trespass 
will  not  lie,  it'is  not  larceny  at  common  law.     In  c.   19,  §   1,  at  p. 
142  of  vol.  i.  of  Hawkins'  Pleas  of  the  Crown,  it  is  stated:  "  It  is 
to  be  observed  that  all  felony  includes  trespass,  and  that  every  indict- 
ment of  larceny  must  have  the  words  felotiice  cepit  as  well  as  as20ortarit. 
Whence  it  follows  that  if  the  party  be  guilty  of  no  trespass  in  taking 
the  goods  he  cannot  be  guilty  of  felony  in  carrying  them  away."     As  I 
understand,  the  counsel  for  the  Crown  did  not  really  dispute  the  above 
definition,  and  indeed,  if  he  had,  upon  further  referring  to  the  3d  In- 
stitutes, chap,  xlvii.,  p.  107,  and  the  1st  Hale's  Pleas  of  the  Crown, 
p.  61,  it  would  be  found  to  be  fully  borne  out  by  those  writers.     The 
two  cases  cited  in  argument,  Rex  v.  Mucklow,  1  Moody's  Crown  Cases, 
161,  and  Regina  v.  Davies,  Dears.  640,  are  good  illustrations  of  what  I 
have  enunciated ;  and  if  other  cases  were  wanted  there  are  plenty  in 
the  books  to  the  same  effect.     In  the  present  case  it  seems  to  me,  in  the 
first  place,  that  the  coin  was  not  taken  against  the  will  of  the  owner, 
and  if  this  be  so,  in  my  judgment  it  is  sufficient  to  show  that  there  was 
no  larceny  at  common  law  ;  and  secondly,  it  being  conceded  that  there 
was  no  felonious  intent  in  the  prisoner  when  he  received  the  coin,  this, 
in  my  judgment,  is  also  fatal  to  the  act  being  larceny  at  common  law. 
As  to  this  last  point,  the  law  laid  down  by  Cockburn,  C.  J.,  Blackburn, 
Mellor,   Lush,   Grove,  Denman,   and  Archibald,  JJ.,  in  the  case  of 
Regina  v.  Middleton,  L.  Rep.  2  C.  C.  45,  is  very  pertinent;  it  is  as 
follows:  "  We  admit  that  the  case  is  undistinguishable  from  the  one 
supposed  in  argument  of  a  person  handing  to  a  cabman  a  sovereign  by 
mistake  for  a  shilling  ;  but  after  a  careful  weighing  of  the  opinions  to 
the  contrary,  we  are  decidedly  of  opinion  that  the  property  in  the 
sovereio-n  would  not  vest  in  the  cabman,  and  the  question  whether  the 
cabman  was  guilty  of  larceny  or  not  would  depend  upon  this,  —  whether 
I  at  the  time  he  took  the  sovereign  he  was  aware  of  the  mistake  and  had 
then  the  guilty  intent,  the  animus  furandi."     I  believe  the  above  to 
be  good  law.     The  contention,  however,  of  the  Crown  was  that,  although 
the  above  might  be  correct,  yet  the  present  case  was  to  be  likened  to 
those  cases  in  which  finders  of  a  lost  chattel  have  been  held  guilty  of 
larceny.     The  principle  upon  which  a  finder  of  a  lost  chattel  has  been 
held  guilty  of  larceny  is  that  he  has  taken  and  carried  away  a  chattel, 
not  believing  that  it  had  been  abandoned,  and  at  the  time  of  such  taking 
has  had  the  felonious  intent,  —  the  proper  direction  to  be  given  to  a 
Jury  being,  as  I  understood,  "  Did  the  prisoner,  at  the  time  of  finding 
I  the  chattel  intend  to  appropriate  it  to  his  own  use,  then  believing  that 
/  the  true  owner  could  be  found,  and  that  the  chattel  had  not  been 
'  abandoned?"     See  Regina  v.  Thurborn,  1  Denison's  Crown  Cases,  388, 
and  Regina  v.  Clyde.  L.  Rep.  1  C.  C.  139.     If  he  did,  he  would  be 
guilty  of  larceny  ;  aliter  he  would  not.     Then  it  was  argued,  as  argued 
it  was  by  the  counsel  for  the  Crown,  that  the  prisoner  in  this  case  was 
on  the  same  footing  as  a  finder  of  a  chattel.     In  my  judgment  the  facts 
do  not  support  it.     Keogh,  in  the  present  case,  intended  to  deliver  the 


SECT.  II.]  REGINA   V.    ASH  WELL.  5G9 

coin  to  Ihe  prisoner  and  the  prisoner  to  receive  it.  The  chattel, 
namely,  the  coin,  was  delivered  over  to  the  prisoner  by  its  owner,  and 
the  prisoner  received  it  honestly.  He  always  knew  he  had  the  coin  in 
his  possession  after  it  had  been  delivered  to  liiin.  The  only  thing  which 
was  subsequently  found  was  that  the  coin  delivered  was  worth  240t/., 
instead  of  l'2d.,  as  had  been  supposed.  This  arginnent,  as  it  seems  to 
nie,  confounds  the  fniding  out  of  a  mistake  witli  the  hndingof  a  chattel. 
In  some  cases,  as  above  pointed  out,  the  fuuler  of  a  chattel  may  be 
guilty  of  larcen}'  at  common  law  ;  but  how  does  that  show  that  the 
finder  out  of  a  mistake  may  also  be  guilty  of  such  a  crime?  A  mistake 
is  not  a  chattel.  The  chattel  (namely,  the  coin)  in  this  case  never  was 
lost ;  then  how  could  it  be  found  ?  In  my  judgment  the  argument  ui»oa 
the  point  for  the  Crown  is  wholly  fallacious  and  fails.  It  was  further 
urged  for  the  Crown  that  the  present  case  was  covered  b}'  authority, 
and  the  cases  of  Cartwright  r.  Green,  8  Ves.  405,  and  Merry  u.  Green, 
7  M.  &  W.  623,  were  cited  in  this  behalf.  I  fail  to  see  that  either  case 
is  an  authority  for  the  point  insisted  upon  by  the  Crown.  In  the  first 
case,  Cartwright  r.  Green,  8  Ves,  405,  the  question  arose  upon  denuirrer 
to  a  bill  in  Chancery  as  to  whether  a  felony  was  disclosed  upon  the  face 
of  the  bill.  Lord  ICldon,  as  he  states  in  his  judgment,  decided  the  case 
upon  the  ground  that,  inasmuch  as  the  bureau  in  question  had  been 
delivered  to  the  defendant  for  no  other  purpose  than  repaii-,  and  he  had 
broken  open  a  part  of  it  which  it  was  not  necessary  to  touch  for  the 
purpose  of  repair  with  the  intention  of  taking  and  appropriating  to  his 
own  use  whatever  he  should  find  therein,  it  was  larcen)'.  I  conceive 
this  to  be  distinctly  within  the  principle  I  have  above  stated,  —  there 
was  the  taking  against  the  will  of  the  owner  with  the  felonious  intent 
at  the  time  of  taking.  The  other  case,  namely.  Merry  '■.  Green,  7  M. 
&  "W.,  G23,  which  was  also  the  case  of  a  purse  in  a  secret  drawer  of  a 
bureau  which  had  been  purchased  at  a  sale,  was  clearl}-  decided  by 
Parke,  B.,  who  delivered  the  judgment  of  the  court,  upon  the  principles 
applicable  to  a  case  of  finding.  The  learned  Baron  says:  "  It  seems 
to  us  that  though  there  was  a  delivery  of  the  secretary  and  a  lawful 
property  in  it  thereby  vested  in  tlie  plaintiff,  there  was  no  deliver}-  so 
as  to  give  a  lawful  possession  of  the  purse  and  monej'.  The  vendor 
had  no  intention  to  deliver  it  nor  the  vendee  to  receive  it ;  both  were 
ignorant  of  its  existence  ;  and  when  the  plaintiff  discovered  that  there 
was  a  secret  drawer  containing  the  purse  and  money,  it  was  a  case  of 
simple  finding,  and  the  law  applicable  to  all  cases  of  finding  applies." 
I  understand  the  learned  Baron,  when  he  sa3's  "  the  law  applicable  to 
all  cases  of  finding  applies,"  to  mean  the  law  applicable  to  the  cases  of 
finding  a  chattel;  for  there  are  no  cases  extant  as  to  finding  out  a 
mistake  to  which  his  remark  could  apply.  Tliat,  too,  is  the  distinction 
between  the  present  case  and  that  before  Parke,  B.  In  Merry  r. 
Green,  7  M.  &  W.  623,  no  intention  to  deliver  the  chattel  (namely, 
the  purse  and  money)  at  all  ever  existed,  whereas  in  the  present  case 
there  was  every  intention  to  deliver  the  chattel  (namely,  the  coin),  and 


570  KEGINA   V.    ASHWELL.  [CHAP.  XIII. 

it  was  dt-livored  and  honestly  received.  In  lu}' judgment  a  man  who 
honestly  receives  a  chattel  by  delivery  thereof  to  him  by  its  true  owner 
cannot  be  found  guilty  of  larceny  at  common  law,  and  in  my  opinion 
the  prisoner  in  this  case  is  not  guilty  of  that  offence.  The  second 
point  has  now  to  be  considered,  namely,  was  he  guilty  of  larceny  as  a 
bailee  within  the  true  intent  of  §  3  of  24  &  25  Vict.  c.  9G?  To  consti- 
tute a  person  bailee  of  a  chattel  there  must  be  a  bailment  and  not  a 
mere  deliver}'  of  the  chattel.  There  must  be  a  delivery  of  a  chattel 
upon  contract  express  or  implied  to  return  the  chattel  or  obey  the 
mandate  with  which  the  delivery  is  clogged,  or  in  other  words,  a  deliver}' 
upon  condition.  The  question  as  it  seems  to  me  is  this,  Is  the  law  in 
the  present  case  to  imply  a  condition  when  we  know  perfectly  well  that 
at  the  time  of  the  delivery  of  the  coin  no  condition  at  all  was  in  the 
contemplation  of  the  parties,  excepting  that  a  coin  of  like  value  should 
be  returned  to  Keogh  when  the  prisoner  had  drawn  his  wages?  No 
condition  to  return  the  coin  delivered  to  the  prisoner  was  ever  thought 
of,  and  in  my  judgment,  such  a  condition  cannot  be  implied.  Should, 
however,  an\'  condition  be  implied  as  to  what  was  to  be  done  if  or 
when  any  mistake  not  then  contemplated  should  be  discovered,  my 
opinion  is  that  the  only  condition,  if  any,  which  could  be  implied  would 
be  that  the  prisoner  would  not  spend  or  use  for  his  own  purposes  19s.  out 
of  the  20s. ;  and  I  am  of  opinion  that  if  the  prisoner  had,  upon  finding 
out  the  mistake,  taken  to  Keogh  19s.,  he  would  have  been  strictly 
within  his  rights.  The  case  of  Regina  v.  Ilassall,  L.  &  C.  58,  is  an 
express  authority  to  the  effect  that  a  person  is  not  a  bailee  within  the 
statute  unless  he  is  under  obligation  to  return  the  identical  chattel 
deposited  with  him.  In  my  judgment  the  prisoner  was  not  a  bailee  of 
the  sovereign  for  the  reasons  above  given.  I  am  full}'  alive  to  the 
remark  which  has  been  made,  that  if  the  present  case  is  not  one  of 
larceny,  it  should  be.  Whether  this  remark  is  well  founded  or  not  I 
do  not  pause  to  inquire  ;  but  it  seems  to  me  that  the  observations  of 
Bramwell,  B.,  in  Regina  v.  Middleton,  L.  Rep.  2  C.  C.  38,  on  this  head 
are  well  worth}'  of  consideration.  Believing,  however,  as  I  do,  that 
according  to  the  law  of  England,  as  administered  from  the  earliest 
times,  the  present  case  is  not  a  case  of  larceny  at  common  law,  I  cannot 
hold  otherwise  than  I  do ;  and  as  for  the  reasons  given  above,  the 
prisoner  is  not,  in  ray  opinion,  guilty  of  larceny  as  a  bailee,  my  judg- 
ment is  that  the  conviction  should  be  quashed.^ 

Cave,  J.  (As  the  learned  judge  was  unable  to  attend,  the  following 
judgment,  written  by  him,  was  read  by  Lord  Coleridge,  C.  J.)  The 
question  we  have  to  decide  is,  whetiier  under  the  circumstances  stated 
in  the  case  the  prisoner  was  rightly  convicted  of  larceny,  either  at 
common  law  or  as  a  bailee.  It  is  undoubtedly  a  correct  proposition 
that  there  can  be  no  larceny  at  common  law  unless  there  is  also  a  tres- 

1  Concnrring  opinions  were  delivered  by  Mathew,  Field,  Manisty,  and  Stephen, 
JJ.     Day  and  Wills,  JJ.,  also  concurred. 


fECT.  II.]  KEGINA   V.   ASHWELL.  571 

pas.-?,  and  that  there  can  be  no  trespass  where  the  prisoner  has  obtained 
lawful  i)ossebsion  of  the  goods  alleged  to  be  stolen  ;  or  in  other  wouls, 
the  thief  must  take  the  goods  into  liis  possession  with  the  intention  (jf 
depriving  the  owner  of  them.  If  he  has  got  the  goods  lawfully  into  his 
possession  before  the  intention  of  depriving  the  owner  of  them  is 
formed,  there  is  no  larceny.  A[)plying  that  princii)le  to  this  case,  if  the 
piisoner  acquired  lawful  possession  of  the  sovereign  when  the  coin  was 
actually  handed  to  him  by  the  prosecutor,  there  is  no  larceny,  for  at 
that  time  the  prisoner  did  not  steal  the  coin  ;  but  if  he  only  accjuired 
possession  when  he  discovered  the  coin  to  be  a  sovereign,  then  he  is 
guilty  of  larcen}',  for  at  that  time  he  knew  that  he  had  not  the  consent 
of  the  owner  to  his  taking  possession  of  the  sovereign  as  his  own,  and 
the  taking  under  those  circumstances  was  a  trespass.  It  is  contended 
that,  as  the  prosecutor  gave  and  the  prisoner  received  the  coin  under 
the  impression  that  it  was  a  shilling  and  not  a  sovereign,  the  prosecutor 
never  consented  to  part  with  the  possession  of  the  sovereign,  and  con- 
sequently there  was  a  taking  by  the  prisoner  without  his  consent;  but 
to  xny  mind,  it  is  impossible  to  come  to  the  conclusion  that  at  the  time 
when  the  sovereign  was  handed  to  him,  the  prisoner,  who  was  then 
under  a  bona  fide  mistake  as  to  the  coin,  can  be  held  to  have  been 
guilt}'  of  a  trespass  in  taking  that  which  the  prosecutor  gave  him.  It 
seems  to  me  that  it  would  be  equally  logical  to  say  that  the  prisoner 
would  have  been  guilt}'  of  a  trespass  if  the  prosecutor,  intending  to  slip 
a  shilling  into  the  prisoner's  pocket  without  his  knowledge,  had  b}' 
mistake  slipped  a  sovereign  in  instead  of  a  shilling.  The  only  point 
which  can  be  made  in  favor  of  the  prosecution,  so  far  as  I  can  see,  is 
that  the  prisoner  did  not  actually'  take  possession  until  he  knew  what 
the  coin  was  of  which  he  was  taking  possession,  in  which  case,  as  he 
then  determined  to  deprive  the  prosecutor  of  his  property,  there  was  a 
taking  possession  simultaneously  with  the  formation  of  that  intention. 
Had  the  coin  been  a  shilling,  it  is  obvious  that  the  prisoner  would  have 
gained  the  property  in  and  the  possession  of  the  coin  when  it  was  handed 
to  him  by  the  prosecutor ;  as  there  was  a  mistake  as  to  the  identity  of 
the  coin  no  propertv  passed,  and  the  question  is  whether  the  possession 
passed  when  the  coin  was  handed  to  the  prisoner  or  when  the  prisoner 
first  knew  that  he  had  got  a  sovereign  and  not  a  shilling.  There  are 
four  cases  which  it  is  important  to  consider.  The  first  is  Cartwright  c. 
Green,  8  Ves.  405,  which,  however,  differs  slightly  from  the  present, 
because  in  that  case  there  was  no  intention  to  give  the  defendant 
Green  either  the  property-  in  or  the  possession  of  the  guineas,  but  only 
the  possession  of  the  bureau,  the  bailor  being  unaware  of  the  existence 
of  the  guineas.  If  the  bailee  in  that  case  bad,  before  discovering  the 
guineas  in  the  secret  drawer,  negligently  lost  the  bureau  with  its  con- 
tents, it  is  difficult  to  see  how  he  could  have  been  made  resjionsible  for 
the  loss  of  the  guineas.  In  Merry  v.  Green,  7  M.  &  W.  02:?.  the  facU 
were  similar  to  Cartwright  v.  Green,  8  Ves.  40.'j.  except  that  the  liureau 
had  been  sold  to  the  defendant.    In  that  case  Parke,  B.,  s.ays  that  though 


572  REGIXA   V.    ASHWELL.  [CHAP.  XIII. 

there  was  a  delivery  of  the  bureau  to  the  defendant,  there  was  no  de- 
livery so  as  to  give  a  lawful  possession  of  the  purse  and  money  in  the 
secret  drawer.  If  these  cases  are  rightly  decided,  as  1  believe  them 
to  be,  they  establish  the  principle  that  a  man  has  not  possession  of  that 
of  the  existence  of  which  he  is  unaware.  A  man  cannot  without  his 
consent  be  made  to  incur  the  responsibilities  toward  the  real  owner 
which  arise  even  from  the  simple  possession  of  a  chattel  without  further 
title,  and  if  a  chattel  has  without  his  knowledge  been  placed  in  his 
custody,  his  rights  and  liabilities  as  a  possessor  of  that  cliattel  do  not 
arise  until  he  is  aware  of  the  existence  of  the  chattel  and  has  assented 
to  the  possession  of  it.  A  case  much  urged  upon  us  on  behalf  of  the 
prisoner  was  Rex  v.  Mucklow,  1  Moody's  Crown  Cases,  160.  In  that 
case  a  letter  containing  a  draft  for  £10  lis.  6d.  had  been  delivered  to 
the  prisoner,  although  really  meant  for  another  person  of  the  same  name, 
and  the  prisoner  appropriated  the  draft,  and  was  tried  and  convicted  of 
larceny.  The  conviction,  however,  was  held  wrong  on  the  ground  that 
he  had  no  animus  furandi  when  he  first  received  the  letter.  Here,  as 
in  the  two  previous  cases,  the  prisoner  was  not  at  first  aware  of  the 
existence  of  the  draft,  and  when  he  became  aware  of  it  he  must  have 
known  that  it  was  not  meant  for  him,  yet  the  judges  seem  to  have  held 
that  he  got  possession  of  the  draft  at  the  time  when  the  letter  was 
handed  to  him.  In  Regina  v.  Davies,  Dearsley's  Crown  Cases,  640,  the 
facts  were  similar  to  those  in  Mucklow's  case,  1  Moody's  Crown  Cases, 
161  ;  and  Erie,  C.  J.,  then  Erie,  J.,  who  tried  the  case,  directed  the 
jury  that  if  at  the  time  the  prisoner  received  the  order  he  knew  it  was 
not  his  property  but  the  property  of  another  person  of  known  name  and 
address,  and  nevertheless  determined  to  appropriate  it  wrongfully  to 
his  own  use,  he  was  guilty  of  larceny,  and  that  in  his  opinion  the 
prisoner  had  not  received  it  until  he  had  discovered,  by  opening  and 
reading  the  letter,  whether  it  belonged  to  him  or  not.  "  I  considered," 
says  the  judge,  "  that  the  law  of  larceny  laid  down  in  respect  of  articles 
found  was  applicable  to  the  article  here  in  question."  The  court, 
however,  quashed  the  conviction  on  the  authority  of  Mucklow's  case, 
1  Moody's  Crown  Cases,  160.  In  Regina  v.  Middleton,  L.  Rep.  2 
C.  C.  38,  in  which  it  was  held  by  eleven  judges  against  four  that,  where 
there  was  a  delivery  of  money  under  a  mistake  to  the  prisoner,  who 
received  it  animo  furandi^  he  was  guilt}'  of  larceny,  there  occurs  a 
passage  in  the  judgment  of  some  of  the  judges  who  formed  the  majority, 
which  is  as  follows:  "We  admit  that  the  case  is  undistinguishable 
from  the  one  supposed  in  the  argument,  of  a  person  handing  to  a 
cabman  a  sovereign  by  mistake  for  a  shilling ;  but  after  carefully 
weighing  the  opinions  to  the  contrary,  we  are  decidedly  of  opinion  that 
the  property  in  the  sovereign  would  not  vest  in  the  cabman,  and  that 
the  question  whether  the  cabman  was  guilty  of  larceny  or  not  would 
depend  upon  this,  —  whether  he,  at  the  time  he  took  the  sovereign,  was 
aware  of  the  mistake,  and  had  then  the  guilty  intent,  the  animus 
furandi."    For  my  part,  I  am  quite  unable  to  reconcile  the  cases  of 


SECT.  II.]  REGINA   V.   ASIIWELL.  573 

Rex  V.  Mucklow,  1  Moody  C.  C.  IGl  aud  Regina  r.  Davics,  Dears. 
C.  C.  610,  and  the  passage  1  have  cited  from  Regiua  o.  Middieton, 
L.  Rep.  2  C.  C.  38,  with  those  of  Caitwright  <;.  Green,  8  Ves.  400  and 
Merry  c.  Greeu,  7  M.  &  W.  023  ;  and  being  compelled  to  choose  be- 
tween them,  I  am  of  opinion  that  the  law  is  correctly  laid  down  in 
Merry  v.  Green,  7  M.  &  W.  623,  for  the  following  reasons  :  The  accept- 
ance by  the  receiver  of  a  pure  benefit  unmixed  with  responsibility  maj' 
fairly  be,  and  is  in  fact,  presumed  in  law  until  the  contrary  is  hhowii ; 
but  the  acceptance  of  something  which  is  of  douljtful  benelil  should  not 
be  and  is  not  presumed.  Possession  unaccompanied  by  ownership  is 
of  doubtful  benefit ;  for  although  certain  rights  are  attached  to  the 
possession  of  a  chattel,  they  are  accompanied  also  by  liabilities  toward 
the  absolute  owner  which  may  make  the  possession  more  of  a  burden 
than  a  benefit.  In  my  judgment,  a  man  cannot  be  presumed  to  assent 
to  the  possession  of  a  chattel ;  actual  consent  must  be  shown.  Now  a 
man  does  not  consent  to  that  of  which  he  is  wholly  ignorant ;  aud  I 
think,  therefore,  it  was  rightly  decided  that  the  defendant  in  Merry  o. 
Green,  7  M.  &  W.  G23,  was  not  in  possession  of  the  purse  aud  money 
until  he  knew  of  their  existence.  Moreover,  in  order  that  there  may  be 
a  consent,  a  man  must  be  under  no  mistake  as  to  that  to  which  he 
consents ;  and  I  think,  therefore,  that  Ashwell  did  not  consent  to  the 
possession  of  the  sovereign  until  he  knew  that  it  was  a  sovereign. 
Suppose  that  while  still  ignorant  that  the  coin  was  a  sovereign  he  had 
given  it  away  to  a  third  person,  who  had  misappropriated  it,  could  he 
have  been  made  responsible  to  the  prosecutor  for  the  return  of  206-.? 
In  my  judgment  he  could  not.  If  he  had  parted  with  it  innocently, 
while  still  under  the  impression  that  it  was  onl}'  a  shilling,  I  think  he 
could  have  been  made  responsible  for  the  return  of  a  shilling  and  a 
shilling  onl}',  since  he  had  consented  to  assume  the  responsibility  of  a 
possessor  in  respect  of  a  shilling  only.  It  may  be  said  that  a  carrier  is 
responsible  for  the  safe  custody  of  the  contents  of  a  box  delivered  to 
him  to  be  carried,  although  he  may  be  ignorant  of  the  nature  of  its 
contents  ;  but  in  that  case  the  carrier  consents  to  be  responsible  for  the 
safe  custody  of  the  box  and  its  contents,  whatever  they  may  happen  to 
be ;  and,  moreover,  a  carrier  is  not  responsible  for  the  loss  of  valuable 
articles  if  he  has  given  notice  that  he  will  not  be  responsible  for  such 
articles  unless  certain  conditions  are  comi)lied  with,  and  is  led  by  the 
consignor  to  believe  that  the  parcel  given  to  him  to  carry  does  not 
contain  articles  of  the  character  specified  in  the  notice.  Batson  r. 
Donovan,  4  B.  «&  A.  21.  In  this  case,  Ashwell  did  not  hold  himself 
out  as  being  willing  to  assume  the  responsibilities  of  a  possessor  of  the 
coin,  whatever  its  value  might  be  ;  nor  can  I  infer  that  at  the  lime  of 
the  delivery  he  agreed  to  be  responsible  for  the  safe  custody  and  return 
of  the  sovereign.  As,  therefore,  he  did  not  at  the  time  of  delivery 
subject  himself  to  the  liabilities  of  the  borrower  of  a  sovereign,  so  also 
I  think  that  he  is  not  entitled  to  the  privileges  attending  the  lawful 
possession  of  a  borrowed   sovereign.     When  he  discovered  that  the 


57-i  EEGI^'A   V.   FLOWERS.  [CHAP.  XIIL 

coiu  was  a  sovereign,  he  was,  I  think,  bound  to  elect,  as  a  finder  would 
be,  whether  he  would  assume  the  responsibilities  of  a  possessor ;  but 
at  the  moment  when  he  was  in  a  position  to  elect,  he  also  determined 
fraudulently  to  convert  the  sovereign  to  his  own  use ;  and  I  am  there- 
fore of  opinion  that  he  falls  within  the  principle  of  Regina  v.  Middleton, 
L.  Rep.  2  C.  C.  45,  and  was  guilty  of  larceny  at  common  law.  For  these 
reasons,  I  am  of  opinion  that  the  conviction  was  right.^ 


REGINA  V.   FLOWERS. 
Crown  Case  Reserved.     1886. 

[Reported  16  Cox  C.  C.  33.] 

Case  reserved  bj'  the  learned  Recorder  for  the  borough  of  Leicester, 
at  the  last  Epiphany  Quarter  Sessions  for  that  borough,  upon  the  trial 
of  an  indictment  which  charged  one  Charles  Flowers  with  having,  on 
the  31st  day  of  October,  1885,  while  being  servant  to  one  Samuel  Len- 
nard  and  another,  felonioush'  stolen,  taken,  and  carried  awa}'  certain 
money  to  the  amount  of  seven  shillings  and  one  penny  halfpenny,  the 
propert}'  of  the  said  Samuel  Lennard  and  another,  his  masters. 

It  appeared  from  the  case  that  the  prisoner  had  been  for  about  three 
months  next  preceding  the  31st  day  of  October,  1885,  a  clicker  in  the 
service  of  Messrs.  Lennard  Brothers,  a  firm  of  shoe  manufacturers  in 
Leicester,  in  whose  establishment  the  following  mode  of  payment  of 
the  wages  of  their  emplo3-ees  was  adopted,  namely :  — 

The  amount  of  wages  due  to  each  workman  was  calculated  from  the 
time-book  and  entered  into  the  wages-book.  Each  amount  was  then 
made  up  and  put  into  a  small  paper  bag,  which  was  then  sealed  ;  and 
the  bags  so  secured  were  sent  to  the  various  rooms  in  which  the  men 
worked.  The  foreman  of  each  of  such  rooms  then  distributed  the  bags 
containing  the  wages  among  the  men  under  his  charge.  When  a  mis- 
take occurred  the  workman  affected  thereby  took  his  bag  to  one  Francis 
Cufflin  (the  clerk)  to  have  the  mistake  rectified. 

On  the  31st  day  of  October  there  was  due  to  the  prisoner  the  sum 
of  sixteen  shillings  and  eight  pence,  and  after  the  workmen  had  been 
paid  their  wages  the  prisoner  came  to  Cufflin  and  said  that  he  was 
three  pence  short,  and  gave  him  the  bag  into  which  his  money  had 
been  put.  The  top  of  the  bag  had  been  torn  off,  and  the  bag  was 
empty.  Another  workman  named  Jinks  had  also  come  to  Cufflin  for 
a  correction  in  his  money,  stating  that  fivepence  or  sixpence  was  due 

1  Concurring  opinions  were  delivered  by  Lord  Coleridge,  C.  J.,  and  Denman,  J. 
Grove  and  Hawkins,  J.J.,  Pollock  and  Huddlestov,  BB.,  also  concurred. 

In  accordance  with  the  opinion  of  Smith,  J.,  see  Reg.  v.  Jacobs,  12  Cox  C.  C 
151  ;  Bailey  v.  State,  58  Ala.  414. 

In  accordance  with  the  opinion  of  Cave,  J.,  see  State  v.  Ducker,  8  Or.  394.  —  Ed. 


SECT.  II.]  REGINA  V.   FLOWERS.  575 

to  him,  and  had  handed  to  Cufflin  his  bag  with  seven  shillings  and 
eleven  pence  halfpenny  in  it.  Culllin  thercupun  gave  the  lirisoner  by 
mistake  Jinks's  bag,  and  also  three  pence  in  cupper,  into  iiis  hand,  and 
the  prisoner,  having  received  Jinks's  bag,  went  away  innnediately, 
and  in  the  presence  of  one  of  his  fellow-worknieu  emptied  the  contents 
of  Jinks's  bag  into  his  hand,  saying,  ''Tlie  biter  has  got  bit;  he  ha-s 
paid  me  double  wages."  He  then  turned  to  another  man  and  said, 
"  Conic  on,  we'll  go  and  have  a  drink  on  it." 

At  the  close  of  the  case  for  the  prosecution,  it  was  submitted  on 
behalf  of  the  prisoner  that  there  was  no  case  to  go  to  the  jury,  as  the 
evidence  failed  to  show  that  the  prisoner  at  the  time  he  received  the 
seven  sliillings  and  eleven  pence  halfpenny  from  Cutllin  had  the  ani- 
r)ius  furandi,  or  guilty  mind,  essential  to  constitute  tlie  olfence  of  lar- 
ceny, and  that  any  subsequent  fraudulent  appropriation  of  the  money 
by  the  prisoner  was  immaterial  in  so  far  as  the  offence  of  larceny  was 
concerned. 

The  learned  Recorder,  however,  held  that  there  was  evidence  to  go 
to  the  jur}'  of  the  prisoner  having  the  cmiimis  furandi  at  the  time  he 
received  from  Cuttlin  the  money,  and  he  also  ruled,  in  deference  to  the 
opinion  of  certain  of  the  learned  judges  in  Regina  v.  Ashwell,  53 
L.  T.  Rep.  N.  S.  773  ;  IG  Cox  C.  C.  1  ;  16  Q.  B.  Div.  190 ;  o5  L.  J. 
65,  M.  C,  that  if  the  prisoner  received  the  money  innocently  but  after- 
wards fraudulently  appropriated  it  to  his  own  use,  he  was  guilty  of  larceny. 
Plaving  directed  the  jury  to  this  effect,  he  put  to  them  the  following 
questions,  namely  :  — 

1.  Did  the  prisoner,  from  the  time  he -received  from  Cuftlin  the  bag 
containing  the  seven  shillings  and  eleven  pence  halfpenny,  know  that 
it  did  not  belong  to  him?     To  this  the  jury  answered,  No. 

2.  Did  the  prisoner,  having  received  the  bag  and  its  contents  inno- 
cently, afterwards  fraudulently  appropriate  them  to  his  own  use?  And 
to  this  the  jury  answered,  Yes. 

The  learned  Recorder  thereupon  directed  a  verdict  of  guilty  to  be 
entered  on  the  first  count  of  the  indictment,  which  was  that  above  set 
out,  and  reserved  the  question  for  the  consideration  of  this  court 
whether,  the  jury  not  having  found  affirmatively  that  the  prisoner  had 
the  animus  furandi  at  the  time  he  received  the  seven  shillings  and 
eleven  pence  halfpenny  from  Cufflin,  he  could  be  rightly  convicted  of 
larceny  by  reason  of  the  subsequent  fraudulent  appropriation  by  him 
of  the  said  money  to  his  own  use. 

No  one  appeared  on  behalf  of  the  prosecution  or  the  prisoner. 

Loud  Coleridge,  C.  J.  This  case  might  have  raised  a  very  subtle 
and  interesting  question.  The  manner  in  which  the  learned  Recorder 
has  stated  it,  however,  raises  a  question  which  is  distinguislial)le  from 
that  which  was  raised  in  the  case  of  Regina  r.  Ashwell.  Now.  in  that 
case,  the  judges  who  decided  in  favor  of  the  conviction  never  meant 
to  question  that  which  has  been  the  law  from  the  beginning,  and  to  I  '^j^^ 
hold  that  the  appropriation  of  chattels  which  had  previously  been  iuno 


576  REGINA   V.   FLOWEES.  [cHAP.  XIII. 

centl}-  received  should  amount  to  the  offence  of  larceny.  If  that  case 
is  referred  to,  it  will  be  seen  that  I  mN'self  assumed  it  to  be  settled  law 
that  where  there  has  been  the  delivery  of  a  chattel  from  one  person  to 
another,  subsequent  misappropriation  of  that  chattel  by  the  person 
to  whom  it  has  been  delivered  will  not  make  him  guilt}'  of  larceny 
except  b\-  statute.  In  the  present  case,  however,  the  learned  Recorder 
appears  to  have  directed  the  jurj'  that,  if  the  prisoner  received  the 
7s.  11  ^d.  innocently,  but  afterwards  fraudulently  appropriated  the 
money  to  his  own  use,  he  was  guilty  of  larceny.  But  no  such  rule 
was  intended  to  be  laid  down  in  Regina  /-.  Ashwell,  and  the  direction 
of  the  learned  Recorder  was  not,  in  my  opinion,  in  accordance  with 
that  decision.  It  is  quite  possible  for  the  jury  to  have  considered  con- 
sistently with  that  direction  that  a  fraudulent  appropriation,  six  months 
after  the  receipt  of  the  mone}-,  would  justify  them  in  finding  the  pris- 
oner guilty  of  larceny.  The  question  we  are  asked  is,  whether  the  jury 
not  having  found  affirmatively  that  the  prisoner  had  the  animus  furandi 
at  the  time  he  received  the  money,  he  was  rightly  convicted  of  larceny 
b}'  reason  of  the  subsequent  fraudulent  appropriation.  In  my  opinion 
he  was  not.  The  judgment  of  those  judges  who  affirmed  the  convic- 
tion in  Regina  v.  Ashwell,  if  carefully  read,  shows  that  they  considered 
that  to  justify  a  conviction  for  larceny  there  must  be  a  taking  posses- 
sion simultaneous!}'  with  the  formation  of  the  fraudulent  intention  to 
appropriate,  and  that  was  not  the  case  here. 

Maxistt,  J.  I  am  of  the  same  opinion.  The  difference  of  opinion 
among  the  judges  who  decided  the  case  of  Regina  v.  Ashwell  was  in 
the  appplication  to  the  particular  facts  in  that  case  of  the  settled  prin- 
ciple of  law  that  the  innocent  receipt  of  a  chattel,  coupled  with  the 
subsequent  fraudulent  appropriation  of  that  chattel,  does  not  amount 
to  larceny.  And  while  certain  of  the  judges  were  of  opinion  that  there 
had  been  a  fraudulent  taking  and  not  an  innocent  receipt,  and  held  that 
Ashwell  had  been  guilty  of  larceny,  the  others,  on  the  contrary-,  were 
of  opinion  that  there  had  been  an  innocent  receipt,  and  that  therefore 
there  had  been  no  larcen\'.  I  am  glad  to  think  that  the  old  rule  of  law 
remains  unaffected. 

Hawkins,  J.  The  old  rule  of  law  was  not  questioned  by  an}-  of 
the  judges  in  Regina  v.  Ashwell.  This  case  is  distinguishable,  for 
here  the  learned  Recorder  told  the  jury  that  if  the  prisoner  received 
the  7s.  11  ^f?.  innocently  but  afterwards  fraudulently  appropriated  that 
money  to  his  own  use,  he  was  guilty  of  larceny.  It  appears  clear  to 
me  that  tliat  direction  could  not  be  right,  and  that  the  learned  Recorder 
misapprehended  the  rule  of  law. 

Day,  J,  I  was  one  of  those  who  dissented  from  affirming  the  con- 
viction in  Regina  v.  Ashwell,  and  have  only  to  add  that,  in  my  opinion, 
this  conviction  cannot  be  supported. 

Grantham,  J.     I  am  of  the  same  opinion. 

Conviction  quashed. 


SECT.  II.]  KEGINA   V,   TOWNLEY.  577 

SECTION   II.  (royitinued). 

{(i)    TOUTIOIS    I'oHSKSSIO.V. 

REGINA   V.   TOWxXLEY. 
Ckown  Case  Reservei>.     1^71. 

[Reported  12  Cox  C.  C.  59.] 

€ase  reserved  for  the  opinion  of  this  court  I)y  Mr.  Justice  Black- 
biitn. 

The  prisoner  and  one  George  Dunkley  were  indicted  before  me  at  the 
Northampton  Spring  Assizes  for  stealing  12G  dead  rabbits. 

In  one  conut  they  were  laid  as  the  property  of  William  Hollis  ;  in 
another  as  being  the  property  of  the  Queen. 

There  were  also  counts  for  receiving. 

It  was  proved  that  Seise}-  Forest  is  the  propert}-  of  her  Majesty. 

An  agreement  between  JNIr.  Hollis  and  the  Commissioners  of  the 
Woods  and  Forests  on  behalf  of  her  Majesty  was  given  in  evidence, 
which  I  thought  amounted  in  legal  effect  merely  to  a  license  to  Mr. 
Hollis  to  kill  and  take  awa}*  the  game,  and  that  the  occupation  of  the 
soil  and  all  rights  incident  thereto  remained  in  the  Queen.  No  point, 
however,  was  reserved  as  to  the  proof  of  the  property  as  laid  in  the 
indictment. 

The  evidence  showed  that  IMr.  Hollis's  keepers,  about  eight  in  the 
morning  on  the  23d  of  September,  discovered  12(5  dead  and  newly  killed 
rabbits  and  about  400  yards  of  net  concealed  in  a  ditch  in  the  forest 
behind  a  hedge  close  to  a  road  passing  through  the  forest. 

The  rabbits  were  some  in  bags  and  some  in  bundles,  strapped  to- 
gether b}'  the  legs,  and  had  evidently  been  placed  there  as  a  place  of 
deposit  b}'  those  who  had  netted  the  rabbits. 

The  keepers  lay  in  wait,  and  about  a  quarter  to  eleven  on  the  same 
day  Townle}'  and  a  man,  who  escaped,  came  in  a  cab  driven  by  Dunk- 
ley  along  the  road.  Townley  and  the  man  who  escaped  left  the  cab  in 
charge  of  Dunkley  and  came  into  the  forest  and  went  straight  to  the 
ditch  where  the  rabl)its  were  concealed  and  began  to  remove  them. 

The  prisoners  were  not  defended  by  counsel. 

It  was  contended  by  the  counsel  for  the  prosecution  that  the  rablnts 
on  being  killed  and  reduced  into  possession  b}"  a  wrong-doer  became 
the  property  of  the  owner  of  the  soil,  in  this  case  the  Queen  (Blades  »'. 
Higgs,  7  L.  T.  N.  S.  798,  834)  ;  and  that  even  if  it  was  not  larceny  to 
kill  and  carr}'  away  the  game  at  once,  it  was  so  here,  because  the  kill- 
ing and  carrying  away  was  not  one  continued  act. 

1  Hale,  P.  C.  510,  and  Lee  r.  Risdon,  7  Taunt.  191.  were  cited. 

The  jur}',  in  answer  to  questions  from  me,  found  that  the  rabbits 

37 


578  KEGINA   V.   TOWNLEY.  [CHAP.  XIII. 

had  been  killed  by  poachers  in  Seise}-  Forest,  on  land  in  the  same  occu- 
pation and  ownership  as  the  spot  where  the}-  were  found  hidden. 

That  Townley  removed  them,  knowing  that  they  had  been  so  killed, 
but  that  it  was  not  proved  that  Dunkley  had  any  such  knowledge. 

I  thereupon  directed  a  verdict  of  not  guilty  to  be  entered  as  regarded 
Dunklev,  and  a  verdict  of  guilty  as  to  Townley,  subject  to  a  case  for 
the  Court  of  Criminal  Appeal. 

It  is  to  be  taken  as  a  fact  that  the  poachers  had  no  intention  to 
abandon  the  wrongful  possession  of  the  rabbits  which  they  had  acquired 
by  taking  them,  but  placed  them  in  the  ditch  as  a  place  of  deposit  till 
they  could  conveniently  remove  them. 

The  question  for  the  court  is,  whether  on  these  facts  the  prisoner 
was  properly  convicted  of  larceny. 

The  prisoner  was  admitted  to  bail. 

Colin  Blackburn. 

No  counsel  appeared  to  argue  on  either  side. 

BoviLL,  C.  J.  (after  stating  the  facts).  The  first  question  that 
arises  is  as  to  the  nature  of  the  property.  Live  rabbits  are  animals 
fene  natitrw,  and  are  not  the  subject  of  absolute  property ;  though  at 
the  same  time  they  are  a  particular  species  of  property  ratione  soli,  — 
or  rather  the  owner  of  the  soil  has  the  right  of  taking  and  killing  them, 
and  as  soon  as  he  has  exercised  that  right  they  become  the  absolute 
property  of  the  owner  of  the  soil.  That  point  was  decided  in  Blades  v. 
Higgs,  siqyra,  as  to  rabbits,  and  in  Lonsdale  v.  Eigg,  26  L.  J.  196, 
Ex.,  as  to  grouse.  In  this  case  the  rabbits  having  been  killed  on  land 
the  property  of  the  Crown,  and  left  dead  on  the  same  ground ,  would 
therefore  in  the  ordinary  course  of  things  have  become  the  property  of 
the  Crown.  But  before  a  person  can  be  convicted  of  larceny  of  a  thing 
not  the  subject  of  larceny  in  its  original  state,  as,  e.  ^.,  of  a  thing  at- 
tached to  the  soil,  there  must  not  only  be  a  severance  of  the  thing  from 
the  soil,  but  a  felonious  taking  of  it  also  after  such  severance.  Such 
is  the  doctrine  as  applied  to  stealing  trees  and  fruit  therefrom,  lead  from 
buildings,  fixtures,  and  minerals.  But  if  the  act  of  taking  is  continu- 
ous with  the  act  of  severance,  it  is  not  larceny.  The  case  of  larceny  of 
animals  ferce  natiirce  stands  on  the  same  principle.  Where  game  is 
killed  and  falls  on  another's  land,  it  becomes  the  property  of  the  owner 
of  the  land  :  but  the  mere  fact  that  it  has  fallen  on  the  land  of  another 
does  not  render  a  person  taking  it  up  guilty  of  larceny,  for  there  must 
be  a  severance  between  the  act  of  killing  and  the  act  of  taking  the  game 
away.  In  the  present  case  we  must  take  it  that  the  prisoner  was  one 
of  the  poachers  or  connected  with  them.  Under  these  circumstances 
we  might  come  to  the  conclusion  that  it  was  a  continuous  act,  and  that 
the  poachers  netted,  killed,  packed  up,  and  attempted  to  carry  away 
the  rabbits  in  one  continuous  act,  and  therefore  that  the  prisoner  ought 
not  to  have  been  convicted  of  larceny. 

Martin,  B.     I  am  of  the  same  opinion.     It  is  clear  that  if  a  person 


SECT.  II.]  REGINA    V.    TOWNLEY.  579 

kills  rnhbits  and  at  the  .same  time  carries  them  awaj*,  he  is  not  giiiltv 
of  hirceuj.  Then,  when  he  kills  rabbits  and  goes  and  hides  them  anil 
comes  back  to  carry  them  away,  can  it  be  said  that  is  larceny?  A 
passage  from  Hale's  P.  C.  510,  ''  If  a  man  comes  to  steal  trees,  or  the 
lead  oir  a  church  or  house,  and  sever  it,  and  after  about  an  hour's  time 
or  so  come  and  fetcli  it  away,  it  is  felony,  becau.se  the  a<-t  is  not  c<hi- 
tinuated,  but  interpolatud.  and  in  that  interval  the  propertv  lodgeth  in 
the  right  owner  as  a  chattel,  and  so  it  was  argued  l)y  the  Court  of  King'.s 
Bench,  9  Car.  1,  upon  an  indictment  for  stealing  the  lead  off  West- 
minster Abbey,"  was  relied  on  by  the  prosecution.  There  is  also  a 
dictum  of  Gibbs,  C.  J.,  to  the  same  effect  in  Lee  /•.  Kisdon,  7  Taunt. 
191.  I  am  not  insensible  to  the  effect  of  those  dicta;  but  here  we 
must  take  it  as  a  fact  that  the  poachers  had  no  intention  to  abandon 
possession  of  the  rabbits,  but  put  them  in  the  ditch  for  convenience 
sake  ;  and  I  concur  in  thinking  that  the  true  law  is  that,  when  the 
poachers  go  back  for  the  purpose  of  taking  them  away,  in  continuation 
of  the  original  intention,  it  docs  not  amount  to  larcenj-. 

Bramwell,  B.  Our  decision  does  not  appear  to  me  to  be  contrary 
to  what  Lord  Hale  and  Gibbs,  C.  J.,  have  said  in  the  passages  referred 
to.  If  a  man  having  killed  rabbits  on  the  land  of  another,  gets  rid  of 
them  because  he  is  interrupted  and  then  goes  away  and  afterwards 
,  comes  back  to  remove  the  ral)bits,  that  is  a  larceny  ;  and  so,  if  on  being 
\  pursued,  he  throws  them  away ;  and  it  is  difficult  to  perceive  any  dis- 
tinction where  the  owner  of  a  chattel  attached  to  the  freehold  finds  it  on 
his  land  severed,  and  the  person  who  severed  it  having  abandoned  it 
afterwards  comes  and  takes  it  away.  It  is  in  those  cases  so  left  as  to 
be  in  the  possession  of  the  true  owner,  and  the  act  is  not,  as  Lord  Hale 
expresses  it,  continuated.  In  this^ca^p,  linwrpvor  thr.  r-^Lhi^g  were  left 
by  the  poachers  as  trespassers  in  a  place  of  deposit,  though  it  hap- 
pened to  be  on  the  land  of  the  owner  ;  and  it  is  just  the  same  as  if  thev 
had  been  taken  and  left  at  a  public  house  or  upon  the  land  of  a  neigh- 
bor. If  they  had  been  left  on  the  land  of  a  neighbor  or  at  a  public 
house,  could  it  have  been  said  to  be  larceny?  Clearly  not ;  and  if  not 
■why  is  it  larceny  because  the  poachers  left  them  in  a  place  of  deposit 
on  the  owner's  own  land?  It  seems  to  me  that  the  case  is  not  within 
the  dicta  of  Lord  Hale  and  Gibbs,  C.  J.,  but  that  here  the  act  was  con- 
tinuous, and  that  there  was  an  asportation  b}-  the  poachers  to  a  place 
of  deposit,  where  they  remained  not  in  the  owner's  posses.sion. 

Byles,  J.  I  cannot  say  that  T  have  not  entertained  a  doubt  in  this 
case ;  but  upon  the  whole  I  think  that  this  was  not  larceny.  The 
wrongful  taking  of  the  r,abbits  was  never  abandoned  by  the  poach- 
ers, for  some  of  the  rabbits  were  in  their  bcags.  It  could  hardly  be  said 
that  if  a  poacher  diopped  a  rabbit  and  afterwards  picked  it  up  that 
could  be  converted  into  larceny,  yet  that  would  follow  if  the  conviction 
were  upheld. 

Blackburn,  J.  T  am  of  the  same  opinion.  Larceny  has  alw.ays  been 
defined  as  the  taking  and  carrying  awav  of  the  goods  and  chattels  of 


580  EEGIXA   V.    TOWNLEY.  [CHAP.  XIII. 

another  person  ;  and  it  was  very  early  settled  where  the  thing  taken  was 
not  a  chattel,  as  where  a  tree  was  cut  down  and  carried  away,  that  was 
not  larceny,  because  the  tree  was  not  taken  as  a  chattel  out  of  the  owner's 
possession  and  because  the  severance  of  the  tree  was  accompanied  by 
the  taking  of  it  away.     The  same  law  applied  to  fruit,  fixtures,  min- 
erals, and  the  like  things,  and  statutes  have  been  passed  to  make  steal- 
ing in  such  cases  larceny.     Though  in  the  House  of  Lords,  in  Blades  v. 
Higgs,  it  was  decided  that  rabbits  killed  upon  laud  became  the  prop- 
erty of  the  owner  of  the  land,  it  was  expressly  said  that  it  did  not  fol- 
low that  every  poacher  is  guilty  of  larceny,  because,  as  Lord  Crauworth 
said,  "Wild  animals  whilst  living,  though  they  are,  according  to  Lord 
Holt,  the  property  of  the  owner  of  the  soil  on  which  they  are  living,  are 
not  his  personal  chattels  so  as  to  be  the  subject  of  larceny.     They  par- 
take while  living  of  the  quality  of  the  soil,  and  are,  like  growing  fruit, 
considered  as  part  of  the  realty.     If  a  man  enters  my  orchard  and  fills 
a  wheelbarrow  with  apples,  which  he  has  gathered  from  my  trees,  he  is 
not  guilty  of  larceny,  though  he  has  certainly  possessed  himself  of  my 
\ property  ;  and  the  same  principle  is  applicable  to  wild  animals."     The 
Iprinciple  is  as  old  as  11  Year  Book  (par.  33),  where  it  is  reported  that 
a  forester  who  had  cut  down  and  carried  away  trees  could  not  be  ar- 
raigned for  larceny  though  it  was  a  breach  of  trust ;  but  it  was  said  it 
would  have  been  a  diff"erent  thing  if  the  lord  of  the  forest  had  cut  down 
the  trees  and  the  forester  had  carried  them  away,  then  that  would  have 
been  larceny.     So  that  in  the  case  of  wild  animals  if  the  act  of  killing 
and  reducing  the  animals  into  possession  is  all  one  and  continuous, 
the  offence  is  not  larceny.     The  jury  have  found  in  this  case  that  the 
prisoner  knew  all  about  the  killing  of  the  rabbits,  and  that  they  were 
lying  in  the  ditch.     It  is  clear  that  during  the  three  hours  they  were 
lying  there,  no  one  had  any  physical  possession  of  them  and  that  they 
were  still  left  on  the  owner's  soil ;  but  I  do  not  see  that  that  makes  any 
difference.     Then  there  is  the  statement  from  Hale's  P.  C.  510,  where 
it  is  said  that  larceny  cannot  be  committed  of  things  that  adhere  to  the 
freehold,  as  trees,  or  lead  of  a  house,  or  the  like,  yet  that  the  Court  of 
King's  Bench  decided  that  where  a  man  severed  lead  from  Westminster 
Abbey  and  after  about  an  hour's  time  came  and  fetched  it  away,  it  was 
felony,  because  the  act  is  not  continuous  but  interpolated;   and  Lord 
Hale  refers  to  Dalton,  c.  103,  p.   166;  and  Gibbs,  C.  J.,  expressed 
the  same  view  very  clearly  in  Lee  v.  Risdon.     Now  if  that  is  to  be  un- 
derstood as  my  brother  Bramwell  explained,  I  have  no  fault  to  find  with 
it;  but  if  it  is  to  be  said  that  the  mere  fact  that  the  chattel  having  been 
left  for  a  time  on  the  land  of  the  owner  has  thereby  remained  the 
owner's  property,  and  that  the  person  coming  to  take  it  awav  can  be 
convicted  of  larceny,  I  cannot  agree  with  it  as  at  present  advised.     If 
we  are  to  follow  the  view  taken  by  my  brother' Bramwell  of  these  authori- 
ties, they  do  not  apply  here,  for  no  one  could  suppose  that  the  poachers 
ever  parted  with  the  possession  of  the  rabbits.     I  agree  that  in  point 
of  principle  it  cannot  make  any  difference  that  the  rabbits  were  left  an 


Sl'^CT.  II.]  REGINA   V.   FOLEY. 


581 


Lour  or  so  in  a  place  of  deposit  on  the  owner's  land.  The  passage  from 
Lord  Hale  may  be  understood  in  the  way  my  brother  Bramwx-ll  has 
interpreted  it,  and  if  so  the  facts  do  not  bring  this  case  withhi  it. 

Coiiciction  quaehtd.^ 


REGINA  V.  F0LP:Y. 
Crown  Case  Reserved,  Iuki.and.     1889. 

[Reported  26  Law  Reports  (Ireland),  299.] 

Case  reserved  by  Mr.  Justice  Gibson  as  follows  for  the  opinion  of 
this  court :  — 

The  accused,  Edward  Foley,  was  tried  before  me  at  Maryborough 
Sunnner  Assizes,  188'J,  for  the  Queen's  County,  for  larceny  of  h^y. 
The  indictment  was  at  common  law. 

Foley  had  been  tenant  to  a  Mr.  Kemmis  of  part  of  the  lands  of 
Ballyadaras  in  said  county,  but  his  tenancy  had  been  determined  by  a 
civil-bill  decree  in  ejectment,  dated  the  1st  January,  \H>iH,  which  was 
duly  executed,  and  possession  taken  on  the  27th  April,  18S8,  when  the 
house  on  the  premises  was  levelled. 

On  August  the  10th,  1888,  the  accused  was  seen  by  the  police  cutting 
meadow  on  the  said  lands  with  a  scythe.  On  the  II th  he  was  again 
seen  cutting  meadow  there.  A  police  constable  went  to  him  there  and 
said,  "  He  was  glad  some  one  would  be  responsible  for  the  cutting," 
when  Foley  replied,  "He  might  as  well  have  it  as  the  landlord." 

On  the  13th  August  Foley  proceeded  to  rake  up  the  hay,  which  was 
then  lying  scattered  in  the  field,  and  put  it  into  a  cart.  He  took 
altogether  ten  or  twelve  cwt,  and  brought  it  awav  in  the  direction  of 
Athy. 

Mr.  Leamy,  counsel  for  the  prisoner,  contended  that  there  was  no 
larceny,  as  the  indictment  was  at  common  law,  and  the  taking  was  one 
continuous  act:  relying  on  The  Queen  /;.  Townley,  L.  R.  1  C."c.  R.  315. 

Mr.  MoUoy,  Q.  C,  for  the  Crown,  contra,  contended  that  the  hay 
was  to  be  deemed  in  the  possession  of  Mr.  Kemmis  at  the  time  when 
the  prisoner  removed  it. 

In  reply  to  a  question  put  by  me  the  jury  said  that  the  prisoner  did 
not  abandon  possession  of  the  grass  cut  between  the  time  of  cutting 
and  time  of  removing  the  same. 

It  must  be  taken  that  Mr.  Kemmis  was  in  possession  of  the  evicted 
farm  at  the  time  when  the  grass  was  cut  and  removed.  There  was  no 
evidence  of  any  act  done  by  Mr.  Kemmis,  or  any  person  on  his  behalf, 
on  the  evicted  farm  from  the  date  of  eviction  until  the  removal  of  tlic 
hay  ;  nor  was  there  any  evidence  of  any  act  done  by  the  prisoner  in 
reference  to  the  farm  or  the  grass  cut,  save  as  above  stated. 

1  Ace.  Reg.  I'.  Fetch,  14  Cox  C.  C.  116.  —  Ed. 


582  EEGIXA    V.    FOLEY.  [CHAP.  XIII. 

Mr.  MoUoy,  Q-  C,  further  contended  that  there  was  no  evidence  to 
support  the  special  finding. 

1  advised  the  jury  to  convict  the  prisoner,  which  thej-  did,  but  I  did 
not  sentence  hira,  and  he  stands  out  on  his  own  recognizance,  pending 
the  decision  of  this  case. 

The  question  for  the  court  is,  whether,  on  these  facts,  the  prisoner 
was  properly  convicted  of  larceny. 

J.  G.  Gibson.^ 

JE!.  Leainy,  for  the  prisoner. 

Molloy,  Q.  C,  with  him  T.  P.  Law,  Q.  C,  for  the  Crown. 

GiBSOK,  J.-^  I  reserved  this  case  for  the  purpose  of  settling  a  ques- 
tion arising,  or  supposed  to  arise,  on  the  decision  in  Reg.  v.  Townle}-, 
L.  R.  1  C.  C.  R.  315.  The  evidence  is  meagre.  Assuming  that  the 
cutting  of  the  meadow  by  the  accused  was  some  evidence  of  an  assump- 
tion of  possession  of  the  grass  cut,  there  was  no  evidence,  in  my  opinion, 
of  any  effective  possession  by  him  of  the  grass  so  cut  and  left  lying  on 
the  owner's  ground  from  that  time  until  it  was  carried  away,  —  though 
it  must  be  taken  that  Foley  did  not  intend  to  abandon  such  grass.  On 
these  facts  prisoner's  counsel,  relying  on  Reg  v.  Townley,  L.  R.  1  C.  C. 
R.  315,  contended  that  the  prisoner  could  not  be  convicted  of  larceny. 
The  authorities  cited  by  Mr.  MoUoy,  Q.  C.  (to  which  may  be  added 
East,  PI.  Cr.,  vol.  2,  p.  587,  and  Gabbett,  Crim.  Law,  p.  557),  establish 
that  where  a  thief,  after  severing  things  parcel  of  the  realty,  left  the 
chattels  so  severed  on  the  proprietor's  soil,  and  after  an  interval  came 
again  and  took  them  away  he  would  be  guilty  of  larceny  at  common  law, 
the  chattels  being  at  the  time  of  removal  in  the  constructive  possession 
of  the  rightful  owner.  The  principle  of  common  law  would  seem  to  be 
that,  when  the  wrong-doer's  actual  and  effective  possession  ceases  he 
cannot  be  deemed  to  be  in  constructive  possession,  and  that  such  con- 
structive possession  of  the  severed  chattels,  crops,  fixtures,  or  other- 
wise, becomes  vested  in  the  rightful  owner,  on  whose  land  thej'  are 
left,  b}'  virtue  of  his  right  to  possession. 

For  the  prisoner  it  was  argued  that  Townley's  case,  L.  R.  1  C.  C.  R. 
315,  is  an  authority  against  this  view,  and  that  if  wrongful  possession  is 
once  acquired  by  the  thief,  the  fact  that  he  may  afterwards  before  re- 
moval cease  to  be  in  effective  occupation  and  control  is  immaterial,  if  he 
does  not  intend  to  relinquish  the  wrongful  possession,  and  in  pursuance 
of  his  original  intent  comes  and  takes  away  the  propert}'. 

That  this  contention  may  not  be  entirely  without  color  is  shown  by 
the  way  Townley's  case,  L.  R.  1  C.  C.  R.  315,  is  tieated  by  well-known 
writers.  Thus,  Mr.  R.  S.  Wright,  in  his  Essay  on  Possession,  at  p.  231, 
says :  "  It  was  formerly  supposed  that  the  mere  leaving  of  the  thing  by 
the  taker  on  the  owner's  premises  for  a  time  of  itself  vested  a  posses- 
sion in  the  owner,  so  as  to  make  a  re-occupation  by  the  taker  a  trespass 

^  Arojnments  are  omittefl. 

2  JoHNSf)v,  J.,  and  Morris,  C.  J.,  delivered  opinions  in  favor  of  conviction,  and 
Hakrisos,  O'Brien,  and  Andrews,  JJ.,  concurred  with  the  majority  of  the  court. 


SECT.  IJ.]  REGINA   V.    FOLEY.  5,S3 

and  {cuiimus  furamU  being  present)  a  thea.  Rut  it  seems  clear  that 
such  a  relinciuibhnient  is  merely  evidence  of  an  aljandonment,  general  or 
to  the  owner,  more  or  less  conclusive  according  to  the  circumstances." 
So  in  the  last  edition  of  Archbold  Criminal  Law,  at  p.  303,  it  is 
stated  there  is  no  larceny  unless  the  "  wrong-doer  had  between  the 
severance  and  the  taking  away  intendeil  to  abandcMj  his  wrongful  pr.-.- 
session  of  the  article  severed."  In  my  opinion  Townley's  case,  L.  li. 
1  C.  C.  R.  315,  does  not  decide  what  is  supposed.  The  continuity  of 
transaction  contemplated  by  the  common  law  as  excluding  larceny  may 
be  considered  from  the  point  of  view  of  time,  act,  and  possession.  The 
principal  element  being  possession,  if  the  thief  is  in  continuous  i)o.s.>>es- 
sion,  the  occurrence  of  an  inter\  al  of  time  between  the  taking  and  the 
carrying  away  can  of  itself  make  no  difference.  Townley's  case,  L.  K. 
1  C.  C.  R.  31o,  only  decides:  (1)  that  where  there  is  evidence  of  actual 
possession  continuing,  the  fact  that  there  is  an  interval  of  time  between 
the  taking  and  carrying  away  does  not  constitute  larceny  where  the 
wrong-doer's  intention  is  not  abandoned  and  the  transaction  is  in  sub- 
stance continuous  ;  (2)  that  chattels  may  be  in  the  thiefs  possession, 
though  left  on  the  owner's  land  (the  chattels  there  being  rabbits  which 
were  not  subject  of  property  until  killed).  The  expressions  "abandon  " 
and  "  intention  to  abandon,"  found  in  the  report  of  Townley's  case,  L. 
R.  1  C.  C.  R.  31;),  though  not  inappropriate  when  read  with  reference  to 
the  special  tacts  of  that  case,  are  liable  to  misconstruction  if  em[)loyed 
in  reference  to  such  a  case  as  that  before  us.  Where  chattels  after 
severance  are  left  on  the  property  of  the  true  owner,  no  matter  what 
the  wrong-doer's  intention  may  be.  he  cannot  escape  the  common-law 
doctrine,  if  his  possession  is  not  in  fact  continuous.  Continuity  of 
intention  is  not  the  equivalent  of  continuity  of  possession.  The 
transaction  here  was  not  continuous,  and  the  conviction  is  right. 

Holmes,  J.  I  think  that  the  solution  of  the  question  reserved  in 
this  case  depends  upon  whether  there  is  any  evidence  that  the  grass  or 
hay  was  not  in  the  possession  of  the  true  owner  in  the  interval  between 
the  severance  and  removal.  When  the  grass  was  growing  it  belonged 
to  the  owner  of  the  land  ;  but  although  he  was  in  possession  of  it  as 
part  of  the  land,  he  was  not  in  possession  of  it  as  a  personal  chattel. 
It  first  became  capable  of  being  the  subject  of  larcen}-  when  it  was 
severed.  It  is,  I  think,  clear  that  where  it  is  severed  by  a  wrong-doer, 
and,  as  part  of  one  continuous  transaction,  it  is  carried  away  by  him, 
there  is  no  larceny.  In  such  a  case  it  has  never,  as  a  personal  chattel, 
been  in  the  possession,  actual  or  constructive,  of  the  true  owner.  It 
has  been  continuously  in  the  actu.al,  though  porliaps  n(jt  always  in 
the  physical,  possession  of  the  wrong-doer.  In  the  case  before  us  the 
defendant,  having  cut  the  grass,  left  it  on  the  lands.  Beyond  the 
severance  he  did  no  act  of  any  kind  evidencing  actual  possession  on 
his  part,  and  for  two  days  the  owner  of  the  land  had,  it  seems  to  me, 
precisely  the  same  kind  of  possession  of  it  as  he  would  have  had  if  it 
had  been  cut  and  left  there  by  his  own  servant. 


5S-4  KEGINA   V.   FOLEY.  [CHAP.  XIIL 

There  cannot,  I  conceive,  be  constructive  as  distinguisiied  from 
actual  possession  by  a  wrong-doer ;  and  when  he  returned  at  the  end 
of  the  period  I  have  mentioned  he  would  be  guilt}'  of  larceny-,  unless 
he  was  in  actual  possession  in  the  interval.  There  is  not,  however,  a 
particle  of  evidence  of  such  actual  possession,  and  therefore  I  hold  the 
conviction  right.  This  conclusion  is  in  strict  accordance  with  the 
authorities  previous  to  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315, 
referred  to  by  Mr.  Molloy,  and  does  not,  I  think,  in  any  way  con- 
flict with  that  decision.  In  that  case  there  was  abundant  evidence 
that  the  whole  transaction  was  a  continuous  act,  or  in  other  words, 
that  the  wrong-doer  had  never  been  out  of  actual  possession  ;  and 
under  the  circumstances  the  fact,  upon  the  assumption  of  which  the 
case  was  stated,  that  the  poachers  had  no  intention  to  abandon  the 
wrongful  possession  of  the  rabbits  which  they  acquired,  but  placed 
them  in  the  ditch  as  a  place  of  deposit  till  the}-  could  conveniently 
remove  them,  was  decisive  in  the  prisoner's  favor.  I  consider,  how- 
ever, that  that  decision  has  no  application  to  the  present  case. 

Palles,  C.  B.  I  am  unable  to  concur  with  the  other  members  of  the 
court.  In  my  opinion  the  conviction  was  wrong,  and  ought  to  be 
quashed.  AVe  all  appear  to  agree  that  if  the  thing  taken  and  carried 
away  is  for  the  first  time  rendered  capable  of  being  stolen  by  the  act 
of  taking,  and  if  the  taking  and  carrying  away  constitute  one  continu- 
ous act,  such  taking  and  carrying  away  is  not  theft  at  common  law. 
We  also  appear  to  agree  that  the  rule  applies  as  well  to  the  grass  iu 
question  here  as  to  the  rabbits  in  The  Queen  v.  Townley,  L.  R.  1  C.  C. 
R.  315,  and  that  the  reason  of  the  rule  is  not  that  the  thing  taken  was 
not  at  the  time  of  the  taking  the  property  of  the  prosecutor,  but  be- 
cause, at  the  moment  at  which  it  became  that  class  of  propert}-  which 
can  be  the  subject  of  larceny  —  i.  e:  a  personal  chattel  —  it  was  in 
the  possession,  not  of  the  true  owner,  but  of  the  trespasser.  On  the 
other  hand,  I  admit  that  although  the  possession  of  the  chattel  was  in 
the  trespasser  by  the  act  of  taking,  yet,  if  such  possession  ceased  in 
fact,  by  its  abandonment  by  the  trespasser,  the  possession  upon  such 
cesser  became  constructively  that  of  the  true  owner ;  and  that  if, 
during  the  continuance  of  such  constructive  possession,  the  trespasser 
again  took  possession,  animo  farandi,  such  last-mentioned  taking 
would  be  larceny. 

The  question,  then,  for  decision  is,  whether  on  the  facts  of  the  present 
case,  and  notwithstanding  the  finding  of  the  jury  on  the  question  left 
to  them,  we  can  say,  as  a  matter  of  law,  that  the  cutting  and  carrying 
away  did  not  constitute  one  continuous  act ;  or,  in  other  words,  that 
the  possession  of  the  prisoner  of  the  severed  grass  had  ceased  prior  to 
its  removal  on  the  13th  August.  As  to  what  constitutes  a  cesser  of 
possession,  it  seems  clear  that  it  cannot  be  said  that  it  necessarily  takes 
place  the  moment  the  trespasser  abandons  physical  control  over  the 
chattel.  In  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315,  the  rabbits 
were  lying  in  a  ditch  for  three  hours  during  the  absence  of  the  poachers, 


SECT.  II.]  REGIKA   V.    FOLEY.  585 

and  were  conscqucntlj-  for  that  period  out  of  their  physical  power  and 
control ;  yet  it  was  held  that  the  question  of  the  cesser  or  abandon- 
ment of  the  trespasser's  possession  was  one  not  of  law,  but  of  fact ; 
and  that  a  verdict  negativing — as  the  jury  have  here  negatived  — 
intention  to  abandon  auiuunted  to  not  guilty.  The  decision  there, 
therefore,  involved  the  determination  that  during  the  entire  period 
whilst  the  rabbits  lay  in  the  ditch,  they  were  in  law  in  the  possession, 
not  of  the  true  owner,  but  of  the  absent  poachers,  and  were  so  by 
reason  of  the  absence  in  the  minds  of  the  poachers  of  intention  to 
abandon. 

The  same  conclusion  was  arrived  at  in  Reg.  r.  Petch,  11  Cox  C.  C. 
110,  in  which  the  period  during  which  the  dead  rabbits  were  hidden  in 
a  hole  in  the  earth  must  have  been  nearly  an  entire  day,  viz.  from  half- 
past  eleven  on  one  morning  to  early  on  the  following  morning.  I  am 
not  quite  sure  that  I  understand  the  exact  meaning  which  Mr.  Justice 
Gibson  attaches  to  the  word  "  elfective  "  when  he  conceives  it  to  be 
a  principle  of  the  common  law  that  when  the  wrong-doer's  actual  and 
effective  possession  ceases,  he  cannot  be  deemed  to  be  in  constructive 
possession.  If  b}'  "effective"  he  means  something  different  from 
"actual"  and  for  this  reason  distinguishes  the  present  case  from  Tlie 
Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315,  and  The  Queen  c.  Petch,  U 
Cox  C.  C.  IIG,  I  am  unable  to  follow  his  reasoning.  If  it  can  be  said, 
as  a  matter  of  law,  that  the  possession  of  the  severed  grass  by  the 
prisoner  in  the  present  case,  although  actual,  was  not  "  elfective  "  so, 
too,  should  have  been  held  the  possession  for  a  day  of  the  trapper  in 
The  Queen  v  Petch,  14  Cox  C.  C.  IIG,  and  that  for  three  hours  of  the 
poachers  in  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315.  On  the 
other  hand,  if  by  "  effective"  he  means  no  more  than  is  involved  in 
"  actual,"  then,  although  I  agree  in  his  view,  I  cannot  distinguish  the 
present  case  from  Townlcy's  case,  L.  R.  1  C.  C.  R.  315,  and  Petch's 
case,  14  Cox  C.  C.  116.  On  that  supposition  it  would  not  be  suHicient 
that  the  facts  should  be  such  that  the  jury  might  have  found  that  the 
actual  possession  of  the  prisoner  had  ceased.  No  doubt  they  might, 
but  they  have  not  done  so.  The}'  have  found  the  contrary.  Petch's 
case,  14  Cox  C.  C.  116  is  a  clear  authority  that  if  the  period  which 
elapsed  between  the  cutting  the  grass  and  its  ultimate  carrying  away 
did  not  amount  to  more  than  a  day,  the  prisoner,  in  the  present  case 
(having  regard  to  the  finding)  would  not  have  been  guilty.  But  if  the 
exact  length  of  the  interval  be  material,  we,  as  distinct  from  the  jurors, 
cannot  determine  the  exact  time,  measured  in  hours  or  in  days,  the 
existence  of  which  will  make  that  larceny,  which  would  not  have  been 
so  had  the  interval  been  something  less.  We  cannot  say  that  if  the 
interval  be  twent3'-three  hours  it  ma}'  not  be,  but  that  if  it  be  in- 
creased to  twenty-five  hours,  or  three  days,  it  necessarily  must  hv 
larceny. 

The  question  involved  is,  as  decided  in  Townlcy's  case,  L.  R.  I  C. 
C.  R.  315,  one  of  intention.     Such  a  question  is  usually  exclusively  for 


586  REGINA   V.    FOLEY.  [cHAP.  XIIL 

a  jury.  If  time  bo,  as  admittedly  it  is,  material  iu  determining  tliis 
intention,  tlie  only  periods  between  which  the  common  law  can  recog- 
nize a  distinction  are  between  those  which  are  and  which  are  not 
reasonable.  This  is  the  view  taken  by  Mr.  Justice  Stephen  iu  his 
Digest  (4th  ed.  Art.  29G).  "It  seems,"  he  says,  "  that  the  taking  and 
carrying  away  are  to  be  deemed  to  be  continuous  if  the  intention  to 
carry  away  after  a  reasonable  time  exists  at  the  time  of  the  taking." 
if  this  be,  as  I  think  it  is,  the  true  rule,  the  jurors  alone  can,  in  a 
case  such  as  the  present,  determine  within  which  class  the  period  of 
time  in  question  here  must  range ;  and  the  question  of  reasonable 
time  not  having  been  left  to  the  jury  or  found,  considerations  arising 
from  the  length  of  the  interval  cannot,  as  it  seems  to  me,  be  relied 
upon.  If,  therefore,  the  conviction,  under  the  circumstances  proved, 
be  riglit,  so  must  it  have  been  had  the  interval  been  three  hours,  or 
one  day,  instead  of  three  days ;  and  unless  there  be  some  other  dis- 
tinction between  this  and  Townle^-'s  case,  L.  R.  1  C.  C.  R.  315,  and 
Fetch's  case,  14  Cox  C.  C  116,  the  present  case  would  appear  to  be 
ruled  b}-  them.  Is  there,  then,  anj-  distinction?  I  think  not.  It  is 
said  that  here  there  is  an  absence  of  intention,  by  which  I  suppose 
is  meant  absence  of  affirmative  evidence  of  intention  in  the  prisoner 
to  remain  in  possession.  Even  were  this  so  it  would  not  justify  the 
judge  in  withdrawing  from  the  jury  the  prisoner's  intention  ;  for  the 
material  thing  is,  not  the  absence  of  intention  to  retain  possession, 
but  the  presence  of  affirmative  intention  to  abandon.  The  mere  act 
of  cutting  was  some  evidence  that  the  prisoner  cut  the  grass  for  him- 
self, and  intended  to  use  it.  He  told  the  police  constable  that  he  (the 
prisoner)  might  as  well  have  it  as  the  landlord.  This  declaration, 
though  made  on  the  11th,  is  some  evidence  of  his  intention  at  the 
time  of  the  original  cutting,  on  the  10th.  It  was  competent,  too,  to 
the  jury  to  have  regard  to  the  character  of  the  act  done,  and  to  find 
that  the  reason  the  prisoner  refrained  for  three  days  from  carrying  it 
away  was  that  it  might  become  dr}-,  and  that  he  might  carry  it  awaj-  as 
hay. 

Mr.  Molloy,  as  I  understand,  contests  the  proposition  laid  down  by 
Mr.  Justice  Stephen,  to  which  I  have  already  referred,  and  for  that 
purpose  relies  mainly  upon  1  Hale  P.  C,  p.  510,  and  Lee  v.  Risdon,  7 
Taunt.  191.  In  the  first  it  is  said :  "  If  a  man  come  to  steal  trees,  or 
the  lead  of  a  church  or  house,  and  sever  it,  and  after  about  an  hour's 
time  or  so  come  and  fetch  it  away,  this  hath  been  held  felon}-,  because 
the  act  is  not  continuated  but  interpolated,  and  so  it  was  agreed  by  the 
Court  of  King's  Bench,  9th  Car.  II.,  upon  an  indictment  for  stealing  the 
lead  of  Westminster  Abbey."  This  passage  ma}-  mean  no  more  than 
that  such  an  act  is  capable  of  being  a  felony,  if  so  found  by  the  jury ; 
and  that  the  jury  should  so  find,  if  they  were  of  opinion  that  the  act 
was  not  continuated  but  interpolated.  In  Lee  v.  Risdon,  7  Taunt.  191, 
the  distinction  drawn  by  Gibbs,  C.  J.,  is  as  to  that  of  which  felony  can, 
and  that  of  which  it  cannot,  be  committed.     '"Felony,"  he  saj's,  "  can- 


SECT.  II.]  REGINA   V.   FOLEY. 


587 


not  be  committed  of  those  things  "(».  e.  things  attached  to  the  fieeliold), 
"  but  if  the  thief  severs  the  property,  and  iiistuntly  canies  it  oil',  it  is 
no  felony  at  common  law.      If,  indcn-d,  he  lets  it  remain  after   it   is 
severed,  any  time,  then  the  removal  of  it  becomes  a  felony."     The  true 
meaning,  however,  of  these  passages  was  determined  by  The  (^ueen  r. 
Townley,  L.  R.  1   C.  C.  R.  315.     Marti.i,  B.,  explains  them  in  these 
words  :  "  Those  statements  may  be  perfectly  correct,  and  ought,  per- 
haps, to  be  followed,  in  cases  exactly  similar  in  their  facts,  where  there 
has  been  an  actual  abandonment   of  possession  of  the  thing.s  taken  ; 
but  here  it  is  expressly  found  that  there  was  no  abandonment ;   and 
where  the  act  is  merely  interrupted,  I  think  it  is  more  reasonable  to 
hold  that  there  is  no  larceny."     This  judgment  is  valualjle  as  sliowing 
two  things:  (1)   That  the  authorities  relied  upoii  by  Mr.  Molloy  are 
applicable  only  where  an  actual  abandonment  of  the  thing  taken  has 
been  found  or  admitted;  (2)  That  the   question   of  abandonment,  in 
fact,  depends   upon  intention  to  abandon.     There,  the  fact  admitted 
was  that  the  poachers  had  no  intention  to  abandon  ;  and  that  is  treated 
by  Martin,  B.,  as  an  express  finding  that  there  was  no  abandonment 
in  fact.     Bramwell,  B.,  also  treats  the  case  as  depending  ufjon  inten- 
tion.    "  I  think  our  decision,"  he  says,  "  is  consistent  with  the  pas- 
sage cited  from  Hale,  and  the  dictum  of  Gibbs,  C.  J.,  referred  to,  which 
appear  to  me  to  be  quite  correct     If  a  man  were  unlawfully  to  dig 
bis  neighbor's  potatoes,  and  from  being  disturbed  in  his  work,  or  any 
other  cause,  were  to  abandon  them  in  the  place  where  he  had  dug  them, 
and  were  afterwards,  with  a  fresh  intention,  to  come  back  and  take 
them  away,  I  think  the  case  would  be  the  same  as  if,  during  this  interval 
of  time,  the  potatoes  had  been  locked  in  a  cupboard  by  the  true  owner." 
Byles,  J.,  in  the  same  way  treats  the  fact  that  the  poachers  had  no 
intention  to  abandon  as  involving  that  their  possession  never  had  been 
abandoned  in  fact.     Blackburn,  J.,  says:  "There  is  the  fact  that  the 
rabbits,  after  being  killed,  were  left  hidden  in  a  ditch  upon  the  land  for 
nearly  three  hours.     I  should  myself  have  thought  that  that  made  no 
difference  in  the  case."     As  to  the  passages  cited  from  Lord  Hale,  and 
the  dictum  of  Chief  Justice  Gibbs,  he  adds:    "If  we  are  to  under- 
stand those  passages  in  the  sense  put  upon  them  by  my  brother  Bram- 
well, as  applying  only  to  a  case  in  which  the  wrong-doer  has  abandoned 
and  lost  all  property  and  possession  in  the  things  in  question,  I  have  no 
quarrel  with  them,  and  they  do  not  apply  to  the  present  case.     But  if 
those  passages  mean  that  the  mere  cessation  of  physical  possession  is 
sufficient  to  make  the  subsequent  act  of  removal  larceny,  then  they  do 
apply  to  the  present  case,  and  in  that  case,  great  as  is  my  respect  for 
Lord  Hale,  I  cannot  follow  him." 

The  clear  answer,  then,  to  the  argument  of  Mr.  Molloy,  appears  to 
me  to  be  that  if  the  passages  he  has  relied  upon  are  to  be  re.ati  in  the 
sense  for  which  he  contends,  they  are  inconsistent  with,  and  have  been 
overruled  by  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  31/>. 

Upon  the  whole,  I  am  of  opinion  that  the  decision  in  The   Queen 


588  COMMONWEALTH  V.   STEIMLING.  [CHAP.  XIIL 

r.  Townley,  L.  R.  1  C.  C.  R.  315,  as  applied  to  the  present  case,  in- 
volves the  following  propositions  :  — 

1.  That  the  mere  leaving  b}'  the  prisoner  of  the  field  in  which  he  cut 
the  grass  was  not,  per  se,  and  irrespective  of  ever}'  other  consideration, 
sufficient  to  make  his  subsequent  act  of  removal  larcen}'. 

2.  That  the  prisoner's  omission  for  three  da3's  to  take  awa}'  the  hay 
was  evidence  from  which  a  jury  might,  if  they  thought  fit,  have  found  an 
abandonment  b}'  the  prisoner  of  that  possession  which  he  had  acquired 
b}'  the  unlawful  act  of  severance. 

3.  That  such  question  of  abandonment  involved  the  intention  of  the 
prisoner  and  his  object  in  leaving  the  grass  lying  upon  the  field  for 
three  days. 

4.  That  such  abandonment  was  essential  to  a  valid  con\iction  ;  and 
that,  in  the  present  case,  in  which  instead  of  being  found  it  has  been 
negatived,  the  conviction  cannot  be  sustained.  See  Eeg.  v.  Barry,  2 
Cox  C.  C.  294. 


COMMONWEALTH   v.   STEIMLING. 


^   *\  Supreme  Court  of  Pennsylvania.     1893 

I     \  /  [Reported  27  Atlantic  Reporter,  297.] 


"Williams,  J.^  It  appeared  on  the  trial  that  Bower,  the  prosecutor, 
was  the  owner  of  a  farm  which  was  crossed  by  Mahanoy  Creek.  Some 
distance  up  the  stream  coal  mines  were  in  operation,  and  had  been  for 
many  years.  The  culm  and  waste  from  the  mines  and  breaker,  which 
had  been  thrown  into,  or  piled  upon  the  bank  of,  the  creek,  had  been 
carried  down  the  stream  by  the  current  and  the  floods,  and  deposited 
in  the  channel  and  along  the  shores  in  considerable  quantities.  This 
material,  having  been  abandoned  by  its  original  owners,  belonged  to 
him  on  whose  land  the  water  left  it.  The  water,  dropping  the  heavy 
pieces  first,  and  cariying  the  smaller  particles  and  dust  along  in  the 
current,  served  as  a  screen  ;  and,  as  the  result  of  this  process,  consid- 
erable quantities  of  coal  suitable  for  burning  were  lodged  along  the 
channel  and  the  banks  of  the  stream,  throughout  its  course  over  the 
prosecutor's  farm.  The  defendant,  descending  the  stream  with  a  flat- 
boat,  entered  upon  the  lands  of  Bower,  and  began  to  gather  coal  from 
the  surface.  He  was  provided  with  a  scoop  or  shovel  made  of  strong 
wire  or  iron  rods,  with  which  he  gathered  up  the  coal.  The  sand  and 
gravel  passed  through  the  meshes  of  the  scoop,  leaving  the  pieces  of 
coal  within  it.  When  the  gravel  was  all  sifted  out,  the  cleaned  coal 
was  emptied  upon  the  flatboat.  This  process  was  continued  until  a 
boat-load  was  obtained.  The  boat  was  then  towed  or  pushed  to  some 
bins  on  the  shore  opposite  to  Bower's  house,  and  the  coal  was  trans- 

1  Part  only  of  the  opinion  is  given. 


SECT.  II.]  COMMONWEALTH   V.   STEIMLIXG.  589 

ferred  from  the  boat  to  the  bins.  This  was  repeated  until  from  eight 
to  twelve  tons  of  eoal  had  been  gathered,  cleaned,  deposited  on  the 
boat,  transported  to  the  bins,  and  unloailed.  This  coal  was  afterwarils 
delivered  to  purchasers,  or  taken  for  consumption,  from  the  bins. 
Here  was  a  taking  with  intent  to  carry  away  ami  convert,  a  carrying 
away,  and  an  actual  conversion,  which,  the  commonwealth  held,  sus- 
tained the  indictment  for  larceny.  The  learned  judge,  however, 
instructed  the  jury  that  the  process  of  collecting,  cleaning,  loading 
upon  the  flatboat,  transporting  to  the  bins,  and  unloading  the  coal  into 
them,  must  be  regarded  as  one  continuous  act,  like  the  act  of  him  who 
tears  a  piece  of  lead  from  a  building  and  carries  it  off,  or  who,  passing 
an  orchard,  plucks  fruit  and  takes  it  away,  and  that  the  defendant  was 
therefore  a  trespasser  only.  The  distinction  in  the  mind  of  the  learned 
judge  was  that  between  real  and  personal  estate.  The  coal  lying  upon 
the  surface  he  held  to  be  real  estate.  The  Ufting  it  up  in  the  shovel 
was,  on  this  theory,  a  severance,  which  forcibly  changed  its  character, 
aiid  made  it  personal.  The  loading  into  the  Ilatboat,  the  transporta- 
tion to  the  bins,  and  unloading  of  the  boat,  all  of  which  acts  were 
done  within  the  lines  of  the  prosecutor's  land,  and  occupied  hours  of 
time  for  each  boat-load,  were  so  connected  witli  the  severance  as  to 
make  but  a  single  act.  For  this  reason  he  held  that  the  defendant  was 
guilty  of  a  trespass  onl}-.  The  common  law  did  distinguish  between 
things  that  are  connected  with  or  savor  of  the  real  estate  and  those 
that  are  personal  goods.  An  apple  growing  upon  a  tree  was  con- 
nected with  the  land  by  means  of  the  tree  that  bore  it,  and  so  held  to 
partake  of  the  nature  of  the  land,  and  to  be  real  estate.  One  who 
plucked  it  from  the  tree,  and  at  once  ate  or  carried  it  away,  was  there- 
fore a  trespasser ;  but  if  he  laid  it  down,  and  afterwards  carried  it 
away,  so  that  the  taking  and  the  asportation  were  not  one  and  the 
same  act,  then,  if  the  carrying  away  was  done  animo  fumndi,  the  ele- 
ments of  larceny  were  present.  Blackstone  tells  us,  in  volume  4,  p. 
233,  of  the  Commentaries,  that  larceny  cannot  be  committed  of  things 
that  savor  of  the  realty,  because  of  "  subtility  in  the  legal  notions  of 
our  ancestors."  He  then  explains  the  subtile  distinction  as  follows : 
"  These  things  [things  that  savor  of  the  realty]  were  parcel  of  the 
real  estate,  and  therefore,  while  they  continued  so,  could  not  by  any 
possibility  be  the  subject  of  theft,  being  absolutely  fixed  and  immov- 
able ;  and  if  they  were  severed  by  violence,  so  as  to  be  changed  into 
movables,  and  at  the  same  time,  by  one  and  the  same  continued  act, 
carried  off  by  the  person  who  severed  them,  they  could  never  be  said 
to  be  taken  from  their  proprietor  in  their  newly  acquired  state  of 
mobility."  But  he  explains  that  if  the  act  of  severance  and  that  of 
carrying  away  be  separated,  so  that  they  do  not  constitute  "one  and 
the  same  continued  act,"  the  subtile  distinction  between  personal  goods 
and  those  that  savor  of  the  real  estate  ceases  to  protect  the  wrong-doer 
from  a  criminal  prosecution,  and  a  charge  of  larceny  can  be  sustained. 
The  question  whether  this  coal,  lying  loose  upon  the  surface,  like  other 


590  COMMONWEALTH   V.    STEIMLING.  [CHAP.  XIII. 

drift  of  the  stream,  was  real  or  personal  estate,  does  not  seem  to  have 
been  raised  in  the  court  below,  and  it  is  not  before  us.  The  real  ques- 
tion presented  is  whether  this  case,  upon  its  facts,  is  one  for  the  appli- 
cation of  the  common-law  rule.  Have  we  here  a  severance  and  an 
as])ortation  that  constitute  '' one  and  the  same  continuous  act?"  If 
the  picking  of  the  coal  from  the  surface  be  treated  as  an  act  of  sever- 
ance, we  have  next  the  act  of  cleaning  and  sifting ;  then  the  deposit 
of  the  cleaned  coal  upon  the  flatboat,  little  b}"  little ;  then  the  trans- 
portation of  the  boat-load  to  the  bins  ;  then  the  process  of  shovelling 
the  coal  from  the  boat  into  the  bins.  The  acts,  occupying  consider- 
able time  for  each  boat-load,  were  all  done  within  the  inclosures  of  the 
prosecutor.  It  is  as  though  one  should  come  with  team  and  farm- 
wagon  into  his  neighbor's  corn-field,  and  pluck  the  ears,  load  them 
into  the  wagon,  and,  when  the  wagon  would  hold  no  more,  draw  the 
corn  away  to  his  own  corn-house,  and  then  return  again,  and  continue 
the  process  of  harvesting  in  the  same  manner  until  he  had  transferred 
his  neighbor's  crop  to  his  own  cribs.  If  such  acts  were  done  under  a 
bona  fide  claim  of  title  to  the  crop,  they  would  not  amount  to  larceu}', 
but,  if  done  animo  fiirandi,  all  the  elements  of  larcenj'  would  be  pres- 
ent. In  the  case  before  us,  it  is  conceded  that  the  coal  belonged  to 
Bower,  and  was  in  his  possession  as  part  of  his  real  estate.  The 
defendant  entered  his  lands  for  the  purpose  of  collecting  coal,  and 
carrying  it  away.  He  makes  no  bona  fide  claim  of  title ;  no  offer  to 
purchase  ;  sets  up  no  license ;  but  rests  on  the  proposition  that,  like 
the  man  who  plucks  an  apple  from  a  tree,  and  goes  his  wa}-,  he  is 
liable  onlj-  as  a  trespasser.  If  this  be  true,  he  could  gather  the  coal 
from  Bower's  land  as  often  as  the  stream  made  a  sufficient  deposit  to 
justify  the  expenditure  of  time  necessary  to  gather,  clean,  transport, 
and  put  it  in  bins.  Upon  the  same  principle,  he  might  gather  all  the 
crops  growing  on  Bower's  farm,  as  the}-  matured,  and,  by  hauling  each 
load  away  when  it  was  made  up,  defend  against  the  charge  of  larceny 
on  the  ground  that  the  gathering  from  the  tree,  the  stalk,  or  the  hill, 
the  loading  into  wagons,  and  the  carrying  of  the  loads  away,  though 
occupying  hours  for  each  load,  and  many  da3-s  for  the  crop,  was  "one 
and  the  same  continuous  act "  of  trespass.  We  cannot  agree  to  such  an 
extension  of  the  common-law  rule,  but  are  of  the  opinion  that  this  case 
should  have  gone  to  the  jur}',  on  the  existence  of  the  animo  fur andi. 


SECT.  II.J  REGINA   V.    RILEY.  f,Ql 


REGINA   u.    RILEY. 
Crown  Case  Reserved.     1853. 

[Re/jorled  6  Cox  C.  C.  88;  Dearshj,  C.  C.  U'J.] 

At  the  General  Quarter  Sessions  of  the    Peace  for  the  comity  of 
Duihaii),  held  at  tlie  city  of  Durham,  before  Rowland    IJurdon,  Esq., 
Cluiirinan,  on  the  18th  day  of  October,  in  the  year  of  our  Lord  1H')2, 
tlie  prisoner  was  indicted  for  having,  on  the  oth  day  of  October,  1Ho2, 
stolen  a  lamb,  the  property  of  John  Burnside.     The  prisoner  pleaded 
not  guilty.     On  the  trial  it  was  proved  that  on  Friday,  the  1st  day  of 
October,  in  the  year  of  our  Lord  1852,  Jolin  Burnside,  the  prosecutor, 
put  ten  white-faced  lambs  into  a  field  in  the  occupation  of  John  Clarke, 
situated  near  to  tlie  town  of  Darlington.     On  Monday,  the  Ith  day  of 
October,  the   prisoner  went  with  a  flock   of  twenty-nine   black-faced 
lambs  to  John  Clarke,  and  asked  if  he  might  put  them  into  Clarke's 
field  for  a  night's  keep,  and  upon  Clarke's  agreeing  to  allow  him  to  do  so 
for  one  penny  per  head,  the  prisoner  put  his  twenty-nine  lambs  into 
the  same  field  with  the  prosecutor's  lambs.     At  half-past  seven  o'clock 
in  the  morning  of  Tuesday,  the  5th  day  of  October,  the  prosecutor  went 
to  Clarke's  field,  and  in  counting  his  lambs  he  missed  one,  and  the  pris- 
oner's lambs  were  gone  from  the  field  also.     Between  eight  and  nine 
o'clock  in  the  morning  of  tlie  same  day,  tlie  prisoner  came  to  the  farm 
of  John  Calvert,  at  Middleton  St.  George,  six  miles  east  from  Darlin"-- 
ton,  and  asked  him  to  buy  twenty-nine  lambs.     Calvert  agreed  to  do 
so,  and  to  give  8s.  apiece  for  them.     Calvert  then  proceeded  to  count 
the  lambs  and  informed  the  prisoner  that  there  were  thirty  instead  of 
twenty-nine  in  the  Hock,  and  pointed  out  to  him  a  white-faced  lamb ; 
upon  which  the  prisoner  said,  "  If  you  olyect  to  take  thirty,  I  will 
draw  one."     Calvert,  however,  bought  the  whole  and  paid  the  prisoner 
£12  for  them.     One  of  the  lambs  sold  to  Calvert  was  identified  by  the 
prosecutor  as  his  property  and  as  the  lamb  missed  l)y  him  from  Clarke's 
field.     It   was    a   half-bred,  white-faced  lamb,  marked  with  the  letter 
"T,"  and  similar  to  the  other  nine  of  the  prosecutor's  lambs.     Tlie 
twenty-nine  lambs  belonging  to  the  prisoner  were  black-faced  lambs. 
On  the  5th  of  October,  in  the  afternoon,  the  prisoner  stated  to  two  of  the 
witnesses  that  he  never  had  put  his  lambs  into  Clarke's  field,  and  had 
sold  them  on  the  previous  afternoon,  for  £11  12.<f.,  to  a  person   on  the 
Barnard  Castle  road,  which  road  leads  west  from  Darlington. 

There  was  evidence  in  the  case  to  show  that  the  prisoner  must  have 
taken  the  lambs  from  Clarke's  field  early  in  the  morning,  which  was 
thick  and  rainy. 

It  was  argued  by  the  counsel  for  the  prisoner,  in  his  address  to  the 
jury,  that  the  facts  showed  that  the  original  taking  from  Clarke's  field 
was  by  mistake ;  and  if  the  jury  were  of  that  opinion,  then,  as  the 
original  taking  was  not  done  animo  furandi,  the  subsequent  appro- 
priation   would   not   make   it   a   larceny,  and   the   prisoner   must   l>o 


502  KEGINA   V.    RILEY.  [cHAP.  XIII. 

acquitted.  The  chairman,  in  summing  up,  told  the  jur}'  that  though 
thev  luio-ht  be  of  opinion  that  the  prisoner  did  not  know  that  the  lamb 
was  in  his  flock  until  it  was  pointed  out  to  him  by  Calvert,  he  should 
rule  that  in  point  of  law  the  taking  occurred  when  it  was  so  pointed 
out  to  the  prisoner  and  sold  b}-  him  to  Calvert,  and  not  at  the  time  of 
leaving  the  field.  The  jury  returned  the  following  verdict :  "  The  jury 
say  that  at  the  time  of  leaving  the  field  the  prisoner  did  not  know  that 
the  lamb  was  in  his  flock,  and  that  he  was  guilty  of  felony  at  the  time 
it  was  pointed  out  to  him." 

The  prisoner  was  then  sentenced  to  six  months'  hard  labor  in  the 
house  of  correction  at  Durham ;  and  being  unable  to  find  bail,  was 
thereupon  committed  to  prison  until  the  opinion  of  this  court  could  be 
taken  upon  the  question  whether  Charles  Riley  was  properly  convicted 
of  larceny.^ 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  conviction  is  right. 
The  case  is  distinguishable  from  those  cited.  R.  v.  Thristle  decides 
only  that  if  a  man  once  gets  into  rightful  possession,  he  cannot  by  a 
subsequent  fraudulent  appropriation  convert  it  into  a  felony.  So  in 
R.  V.  Thurborn,  in  the  elaborate  judgment  delivered  by  my  brother 
Parke  on  behalf  of  the  court,  of  which  I  was  a  member,  the  same  rule 
is  laid  down.  It  is  there  said  that  the  mere  taking  up  of  a  lost 
chattel  to  look  at  it  would  not  be  a  taking  possession  of  it ;  and  no 
doubt  that  may  be  done  without  violating  any  social  duty.  A  man 
may  take  up  a  lost  chattel  and  carry  it  home,  with  the  proper  object  of 
endeavoring  to  find  the  owner ;  and  then  afterwards,  if  he  yields  to 
the  temptation  of  appropriating  it  to  his  own  use,  he  is  not  guilty  of 
felony.  In  Leigh's  case,  also,  the  original  taking  was  rightful,  but 
here  the  original  taking  was  wrongful.  I  am  not,  desirous  of  calling  in 
aid  the  technicality  of  a  continuing  trespass  ;  and  I  think  this  case 
may  be  decided  upon  the  ground  either  that  there  was  no  taking  at  all 
by  the  prisoner  in  the  first  instance  or  a  wrongful  taking,  and  in  cither 
case,  as  soon  as  he  appropriates  the  property,  the  evidence  of  felony  is 
complete. 

Parke,  B.  I  think  that  this  case  may  be  disposed  of  on  a  short 
ground.  The  original  taking  was  not  lawful,  but  a  trespass,  upon 
which  an  action  in  that  form  might  have  been  founded  ;  but  it  was  not 
felony,  because  there  was  no  intention  to  appropriate.  There  was, 
however,  a  continuing  trespass  up  to  the  time  of  appropriation,  and  at 
that  time,  therefore,  the  felony  was  committed.  Where  goods  are 
carried  from  one  county  to  another  they  may  be  laid  as  taken  in  the 
second  county,  and  the  diflerence  between  this  and  Leigh's  case,  as 
well  as  the  others  cited,  is  that  the  original  taking  was  no  trespass. 
It  was  by  the  implied  license  of  the  owner,  and  the  same  thing  as  if  he 
had  been  entrusted  by  the  prosecutor  with  the  possession  of  the  goods. 

Williams,  Talfourd,  and  Crompton,  JJ.,  concurred. 

Conviction  affirmed. 
*  Argument  of  counsel  is  omitted. 


SECT.  II.]  STATE   V.   COOMBS. 


STATE   V.   COOMIJS. 
Supreme  Juuiciai.  Court  of  xMaine.     \xc>?,. 

[Reported  55  Maine,  477.] 

DiCKERSON,  J.i  E.vcoptions.  Tlic  piLsouer  w:i.s  indiftcvl  for  tliu 
larceny  of  a  horse,  sleigh,  and  buffalo  robes.  The  jury  were  inslruele.i 
that,  if  the  prisoner  obtained  possession  of  the  team  by  falsely  and 
fraudulently  pretending  that  he  wanted  it  to  drive  to  a  certain  place, 
and  to  be  gone  a  specihed  time,  when  in  fact  he  did  not  intend  to  gj 
to  such  place,  but  to  a  more  distant  one,  and  to  be  absent  a  longer 
time,  without  intending  at  the  time  to  steal  the  property,  the  team  wa.s 
not  lawfully  in  his  possession,  and  that  a  subsequent  conversion  of  it 
to  his  own  use,  with  a  felonious  intent  while  thus  using  it,  would  be 
larceny. 

It  is  well  settled  that  where  one  comes  lawfully  into  possession  of 
the  goods  of  another,  with  his  consent,  a  subsequent  felonious  conver- 
sion of  them  to  his  own  use,  without  the  owner's  consent,  does  not 
constitute  larceny,  because  the  felonious  intent  is  wanting  at  the  time 
of  the  taking. 

But  how  is  it  when  the  taking  is  fraudulent  or  tortious,  and  the 
property  is  subsequently  converted  to  the  use  of  the  taker  with  a 
felonious  intent?  Suppose  one  takes  his  neighbor's  horse  from  the 
stable,  without  consent,  to  ride  him  to  a  neighboring  town,  with  the 
intention  to  return  him,  but  subsequently  sells  him  and  converts 
the  money  to  his  own  use,  without  his  neighbor's  consent,  is  he  a  mere 
trespasser,  or  is  he  guilty  of  larceny?  In  other  words,  must  the 
felonious  intent  exist  at  the  time  of  the  original  taking,  when  that  is 
fraudulent  or  tortious,   to  constitute  larceny? 

When  property  is  thus  obtained,  the  taking  or  trespass  is  continu- 
ous. The  wrong-doer  holds  it  all  the  while  without  right,  and  against 
the  right  and  without  the  consent  of  the  owner.  If  at  this  poiTit  no 
other  element  is  added,  there  is  no  larceny.  But  if  to  such  taking 
there  be  subsequently  superadded  a  felonious  intent,  that  is,  an  inten't 
to  deprive  the  owner  of  his  property  permanently  without  color  of 
right,  or  excuse,  and  to  make  it  the  property  of  the  taker  without  the 
owner's  consent,  the  crime  of  larceny  is  complete.  "A  felonious 
intent,"  observes  Baron  Parke,  in  Kegina  v.  Ilolloway,  2  C.  &  K..  ti42, 
"means  to  deprive  the  owner,  not  temporarily,  but  permanently  of 
his  own  property,  without  color  of  right  or  excuse  for  the  act,  and  to 
convert  it  to  the  taker's  use  without  the  consent  of  the  owner." 

The  ca.se  of  Regina  v.  Steer,  2  C.  &  K.,  988,  is  in  harmony  with 
this  doctrine.  The  prosecutor  let  the  prisoner  have  his  horse  to  .•^ell  for 
him  ;  he  did  not  sell  it,  but  put  it  at  a  livery  stable.  The  prosecutor 
directed  the  keeper  of  the  stable  not  to  give  up  the  horse  to  the  prisoner, 

1  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 
38 


STATE   V.    COOMBS.  [CHAP.  XIII. 

and  h)ld  the  prisoner  be  must  not  have  the  horse  again ;  to  which  the 
prisoner  replied,  '•  Well."  The  prisoner  got  possession  of  the  horse 
by  telling  a  false  stor\"  to  the  servant  of  the  keeper  of  the  stable,  and 
made  off  with  him.  The  case  was  reserved,  and  the  court  held  the 
prisoner  guiltj-  of  larceny.     Commonwealth  v.  White,  11  Cash.  483. 

In  the  case  at  bar,  the  prisoner  obtained  possession  of  the  property 
by  fraud.  This  negatives  the  idea  of  a  contract,  or  that  the  possession 
of  the  prisoner  was  a  lawful  one  when  he  sold  the  horse.  He  was  not 
the  bailee  of  the  owner,  but  was  a  wrong-doer  from  the  beginning  ;  and 
the  owner  had  a  right  to  reclaim  his  propert}'  at  any  time.  It  has  been 
decided  that  when  a  person  hires  a  horse  to  go  to  a  certain  place,  and 
goes  beyond  that  place,  the  subsequent  act  is  tortious  and  that  trover 
may  be  maintained,  on  the  ground  of  a  wrongful  taking  and  con- 
version.    Morton  v.  Gloster,  46  Maine,  520. 

In  contemplation  of  law,  the  wrongful  act  was  continuous,  and 
when  to  that  act  the  prisoner  subsequently  added  the  felonious  intent, 
that  is,  the  purpose  to  deprive  the  owner  of  his  property  permanently, 
without  color  of  right  or  excuse,  and  to  convert  it  to  his  own  use  with- 
out the  consent  of  the  owner,  the  larceny  became  complete  from  that 
moment.  The  color  of  consent  to  the  possession  obtained  by  fraud, 
does  not  change  the  character  of  the  offence  from  larcen}'  to  trespass 
or  other  wrongful  act.  In  such  case  it  is  not  necessary  that  the  feloni- 
ous intent  should  exist  at  the  time  of  the  original  taking  to  constitute 
larceny,  the  wrongful  taking  being  all  the  while  continuous. 

It  is  to  be  observed  that  this  principle  does  not  appk  in  cases  where 
the  owner  parted  with  his  property,  and  not  the  possession  merel}',  as 
in  the  case  of  a  sale  procured  b}'  fraud  or  false  pretences.  In  such 
instances  there  is  no  larceny,  however  gross  the  fraud  by  which  the 
propert}'  was  obtained.  Mawre}-  v.  Walsh,  8  Cowen,  238;  Ross  v. 
The  People,  5  Hill,  294.  "  It  is  difficult  to  distinguish  such  a  case 
from  larcen}',"  remarks  Mr.  Justice  Cowen,  in  Ross  v.  The  People ; 
"  and  were  the  question  res  nova  in  this  court,  I,  for  one,  would  follow 
the  decision  in  Rex  v.  Campbell,  1  Mood.  Cr.  Cases,  179.  The  deci- 
sions, however,  are  the  other  wa}',  even  in  England,  with  the  single 
exception  of  that  case,  and  they  have  long  been  followed  here.  There 
is  nothing  so  palpably  absurd  in  this  as  to  warrant  our  overruling 
them." 

We  are  unable  to  discover  any  error  in  the  instructions  of  the 
presiding  judge.  Exceptions  overruled. 

Judginient  for  tJie  State. 

Kent,  Waltox,  Barrows,  Danfortu  and  Tapley,  JJ.,  concurred.^ 

1  Ace.  Weaver  v.  State,  77  Ala.  26;  Com.  v.  White,  11  Cush.  483.  —Ed. 


SECT.  II.J  AXONVMOUS.  695  ^     . 

WARD  V.   PEOPLE.  'X^'^r^''^    ^ 

Supreme  Colkt  of  New  Yukk.     1842.     •        kt  J^ 

[AV/»o/7t</3  //i7/,  395.]  ^ 

EuiiOR  to  the  Oneida  general  sessions,  wlierc  Ward  was  convicted  of 
petit  larceny,  second  offence.  The  indictment  charged  the  prisoner 
■with  having  stolen  twenty-five  [)Ounds  of  butter,  the  property  of  one 
John  Flagg.  On  the  trial  Flagg  testified  that  lie  Ijought  the  hnttcr  in 
(piestiou  of  the  captain  of  a  canal  boat.  The  prisoner's  counsel  pro- 
posed to  ask  the  witness  if  he,  or  if  he  and  the  canal  boat  captain 
together,  did  not  steal  the  butter.  This  (juestion  was  objected  to, 
and  the  objection  sustained,  whereupon  the  prisoner's  counsel  ex- 
cepted.^ It  appeared  in  the  course  of  tlie  trial  that  the  butter  stolen 
from  Flagg  had  been  previously  stolen  from  lirkius  on  a  canal  boat,  and 
the  evidence  tended  strongly  to  connect  Flagg  with  the  larceny. 

W.  M.  Allen,  for  the  plaintiff  in  error. 

W.  C.  Noyes,  for  the  people. 

JBy  the  Court,  Nelson,  C.  J.  The  question  put  to  Flagg  was  pro- 
perl}'  overruled.  If  the  question  had  been  answered  in  the  affirmative, 
tlie  fact  would  have  been  immaterial,  because  possession  of  property 
in  the  thief  is  sufficient  to  make  it  the  subject  of  larceny  ;  and  the  title 
may  be  laid  either  in  the  owner  or  the  thief.  Tims  if  A.  steal  goods 
from  B.,  and  C.  afterwards  steal  the  same  goods  from  A.,  C.  is  a  felon 
both  as  to  A.  and  B.  2  East's  Cr.  L.  G54  ;  2  Kuss.  15G  ;  1  Hale's 
P.  C.  507.-'  . 


ANONYMOUS. 
King's  Benxh.     1406. 

[Reported  Year  Book  7  Hen.  IV.,  43,  pi.  9] 

A  MAN  was  appealed  of  larceny  in  ^Middlesex,  while  the  felony  was 
done  in  London.  And  the  court  was  informed  that  the  appellee  after 
the  felony  done  had  carried  the  goods  into  the  count}-  of  Middlesex. 
And  the  court  said  that  for  that  reason  the  appeal  was  well  taken,  for 
when  a  man  robs  another  of  liis  goods,  and  carries  them  into  divers 
counties,  he  commits  the  roliliery  in  each  county,  and  the  ap|ioal  is 
maintainable  in  whatever  county  the  plaintiff  will.  And  note  that  the 
felon  with  the  mainor  was  taken  in  London,  and  the  body  and  the 
mainor  were  made  come  before  the  king. 

^  Only  so  much  of  the  ca.«e  as  relates  to  this  exception  !.■<  given. 
2  Affirmed  G  Ilill,  144,  Foster,  Sen.,  dissenting  on  this  point.     See  ace.  Regiua  • 
Wade,  1  C.  &  K.  739 ;  Com.  v.  Finn,  lOS  Mass.  46C.  — Ed. 


596  ANONYMOUS.  [CHAP.  XIIL 


ANONYMOUS. 

Exchequer  Chamber.     1489. 

[Reported  Year  Book  4  lien.  VII.,  5,  pi.  1.] 

One  was  arraigned  upon  an  indictment,  for  that  he  had  stolen  cer- 
tain goods,  etc.,  in  the  county  of  Surre3-.  And  the  defendant  said 
that  he  was  indicted  for  taking  the  same  goods  on  the  same  day  in  the 
county  of  Middlesex,  and  was  acquitted,  which  was  the  same  felony. 
And  prayed  judgment,  if  for  that,  etc. 

Fisher.  It  is  no  plea,  because  it  shall  be  taken  most  beneficially 
for  the  king,  and  they  may  have  been  stolen  t\vice  well  enough. 

Frowike,  to  the  contrary.  For  where  goods  are  stolen  in  one  count}', 
and  carried  into  another  county,  he  ma}-  be  indicted  in  each  county, 
and  shall  have  judgment  of  Ufe  ;  and  therefore  it  is  reason  that  if  he 
should  be  acquitted  in  one  count}'^,  he  should  be  acquitted  in  the  other 
county.  And  if  one  should  be  beaten  in  one  county,  and  after  die  in 
another  county,  and  indictment  in  both  counties,  it  is  reason  that  if  he 
should  be  acquitted  in  one  county  that  should  help  him  in  the  other 
count}',  etc. 

HussEY,  C.  J.  It  seems  no  plea.  And  as  I  understand,  trespass 
for  battery  committed  in  one  county  cannot  be  found  in  another  county 
on  pain  of  attaint ;  and  the  same  law  of  goods  taken  and  carried  out 
of  the  county  where  they  were  taken,  it  can  be  found  only  in  the  county 
where  the  taking  occurred,  and  that  on  pain  of  attaint.  But  the 
law  is  otherwise  in  appeal ;  for  there  he  may  bring  an  appeal  in  each 
county  where  the  goods  are  carried.  And  this  has  been  a  diversity, 
for  the  appeal  is  to  recover  his  goods,  and  affirms  property  continually 
in  the  party,  etc.,  but  it  is  otherwise  of  trespass  ;  for  it  is  not  to  recover 
the  goods,  but  damages  for  the  goods,  etc.  And,  sir,  I  take  it,  if  one 
steals  my  goods,  and  another  steals  the  goods  from  him,  I  shall  have 
an  appeal  against  the  second  felon  ;  but  it  is  otherwise  of  trespass. 
And  notwithstanding  the  appeal  lies  in  each  county  where  the  goods 
are  carried,  still  he  cannot  be  indicted  except  where  the  taking  was 
made,  for  the  indictment  is  not  to  have  the  goods,  etc. ;  and  that  has 
been  the  diversity  between  indictment  and  appeal.  And  so  here,  not- 
withstanding he  sul)mits  that  it  is  the  same  felony,  that  cannot  be 
tried  ;  for  if  it  should  be  tried,  it  ought  to  be  tried  by  both  counties, 
and  here  neither  of  them  can  give  evidence  to  the  other,  for  the  takings 
are  so  several  that  one  cannot  give  evidence  nor  notice  to  the  other ; 
and  therefore,  notwithstanding  mischief  shall  happen  to  the  party,  such 
mischief  shall  be  borne  ;  for  in  one  county,  etc.,  without  cause  ;  and 
3'et  he  ought  to  answer. 

Fairfax,  J.,  agreed  to  the  diversity  between  appeal,  indictment,  and 
trespass,  etc.,  and  said  that  the  allegation  that  it  is  the  same  felony 
could  not  be  tried  by  both  counties  when  he  is  acquitted  in  one  county, 


SECT.  II.J 


KEX   V.   PKOWES. 


597 


and  those  of  that  county  cannot  <^ivc  oviilencc  of  any  felony  in  that 
county. 

And  then  Murdant  pleaded  the  plea,  and  prayed  that  it  be  allowed  ; 
and  as  to  the  felony,  not  guilty. 

And  the  Chief  Justice  said  that  he  should  have  tiie  plea,  because  it 
is  matter  in  law,  and  the  other  matter  in  fact.  A't  tola  Curia  contnt 
en  in. 

And  it  was  held  by  all  the  justices  and  barons  that  in  a  writ  of 
trespass  in  Middlesex  it  is  no  plea  to  say  that  he  has  recovered  for  a 
trespass  committed  in  the  county  of  Surrey,  because  it  could  not  be 
understood  as  the  same  trespass  ;  but  .some  at  the  Ijar  held  that  it  is 
dilferent  in  felony,  because  it  is  felony  in  every  county  where  the  goods 
are,  or  come,  etc. 

Frowike  said :  For  the  same  reason  that  they  may  find  him  guilty  in 
appeal  for  a  felony  in  another  county,  for  the  same  reason  they  shall 
acquit  of  felony  conceived  in  another  county.  R.  See  T.  25  E.  3  f  14. 
A.  8  H.  5.1 


REX  V.   PROWES. 
Crown  Case  Reserved.     1832. 

[Reported  1  Moody  C.  C.  349.] 
TiiK  prisoner  was  tried  and  convicted  before  Mr.  Selwyn,  K.  C. 


at 


n 


v^ 


^ 


the  spring  Assizes  for  the  County  of  Dorset  in  the  year  1832,  and 
ordered  to  be  transported  for  seven  years  ;  but  the  execution  of  the 
sentence  was  respited  in  order  that  the  opinion  of  the  judges  might 
be  taken  on  the  case. 

The  indictment  charged  the  prisoner  with  stealing  at  Dorchester,  in 
the  county  of  Dorset,  a  quantity  of  wearing  apparel,  the  property  of 
Thomas  Cund}'.  The  things  had  been  taken  by  the  pri.soner  from  a 
box  of  the  prosecutor's  at  St.  Helier's  in  the  island  of  Jersey,  while 
the  prosecutor  was  absent  at  his  work  at  a  short  distance,  and  without 
his  leave  ;  the}-  were  shortly  afterwards  found  in  the  possession  of  the 
prisoner  at  Weymouth,  in  the  county  of  Dorset,  where  he  had  been 
apprehended  on  another  charge. 

A  doubt  occurred  whether  the  original  taking  was  such  whereof  the 

ji^^common  law  could  take  cognizance  ;  and  if  not  whether  the  case  fell 

^    within  the  statute  7  &  8  G.  IV.  c.  29,  s.  76  ;  or  in  other  words  whether 

\    the  island  of  Jersey  could  [be]  considered  as  part  of  the  United  King- 

V     Si     dom.     2  Russell,   175.     If  the  original  taking   be   such   whereof  the 

^     common  law  cannot  take  cognizance,  as  if  the  goods  be  stolen  at  sea, 

the  thief  cannot  be  indicted  in  any  county  into  which  he  may  carry 

r^-them.     3  Inst.  113  ;  1  Haw.  P.  C.  33,  s.  92.     A  similar  exception  i)re- 


'If 

r 


1  See  22  Lib.  Ass.  pi.  32.  —  Ed. 


598  COMMONWEALTH   V.    HOLDER.  [CHAP.  XIIL 

vailed  formerly  where  the  original  taking  was  in  Scotland  or  Ireland; 
/and  it  appears  to  have  been  holden  that  a  thief  who  had  stolen  goods 
/in  Scotland  could  not  be  indicted  in  the  county  of  Cumberland,  where 
he  was  taken  with  the  goods.  Rex  v.  Anderson  and  others,  Carlisle 
summer  Assizes,  1763;  and  before  the  judges,  November,  17G3;  2 
East,  772,  c.  16,  s.  156. 

This  case  was  considered  at  a  meeting  of  all  the  judges  (except  Lord 
Lyndhurst,  C.  B.,  and  Taunton,  J.)  in  Easter  Term,  1832;  and  they 
held  unanimously  that  the  conviction  was  wrong  and  that  the  case  was 
not  within  7  &  8  G.  IV.  c.  29,  s.  76.^ 


PEOPLE   V.   GARDNER. 

Supreme  Court  of  New  York.     1807. 

[Reported  2  Johnson,  477.] 

The  prisoner  was  indicted  and  convicted  of  felon}'  at  the  sessions  in 
Washington  Count}',  for  stealing  a  horse.  On  the  trial  it  appeared 
that  the  original  taking  of  the  horse  was  in  the  State  of  Vermont,  but 
that  the  prisoner  was  apprehended  in  Washington  Count}',  with  the 
horse  in  his  possession.  The  question  was  submitted  to  the  court, 
whether  the  prisoner  could  be  tried  and  punished  in  this  state  for  the 
felony. 

Per  Curiam.  We  are  of  opinion  that  the  prisoner  cannot  be  tried 
for  this  offence  in  this  state.  When  the  original  takhig  is  out  of  the 
jurisdiction  of  this  state,  the  offence  does  not  continue  and  accompany 
the  possession  of  the  thing  stolen,  as  it  does  in  the  case  where  a  thing 
is  stolen  in  one  county,  and  the  thief  is  found  with  the  property  in 
another  county.  2  East's  Pleas  of  the  Crown,  774.  The  prisoner  can 
be  considered  only  as  a  fugitive  from  justice,  from  the  State  of 
Vermont. 


'J 
1 


■A 


^S^    I        COMMONWEALTH  u.   HOLDER. 

Supreme  Judicial  Court  of  Massachusetts.     1857. 

[Reported  9  Grai/,  7.] 

Indictment  for  stealing  at  Milford  in  this  county  goods  of  Henry  W. 
Dana.  At  the  trial  in  the  Court  of  Common  Pleas  there  was  evidence 
that   the  defendant  broke    and    entered    the    shop   of  said    Dana   at 

1  Ace.  Case  of  the  Admiralty,  13  Coke,  51  ;  Rex  v.  Anderson,  2  East  P.  C.  772; 
Eeg.  V.  Debruiel,  11  Cox  C.  C.  207;  Reg.  v.  Carr,  15  Cox  C  C.  131  n.  — Ed. 


SKCT.  II.]  COMMONWEALTH    r.    IIuLDEK.  59'J 

Smithfield  in  the  State  of  Rhode  Ishuul,  Jiiid  stole  the  goods  mentioiu<l 
in  the  indietinent,  and  hroiight  tlium  into  lliis  eount}-.  Tlie  delciKUmt 
asked  that  the  jury  inigiit  l)e  instrueted  tlnit  tlie  iudictiuent  could  not 
be  maintained,  because  the  courts  of  this  state  could  not  take  cogni- 
zance of  a  larceny  committed  in  another  state.  But  MtUen,  C.  .1., 
refused  so  to  instruct  the  jiu-y,  and  instructed  tliem  that  the  evidence, 
if  believed,  was  sullicient  to  sui)[)ort  the  indictment.  The  deftiKlaut 
being  convicted  alleged  exceptions. 

G.  F".   Verri/,  for  the  defendant. 

J.  II.  Cliford  (Attorney  General),  for  the  Commonwealth. 

Shaw,  C.  J.  A  nuijority  of  the  court  are  of  oi)iuion  tiiat  thi^  case 
must  be  considered  as  settled  by  the  case  of  Commonwealth  v.  Up- 
tichard,  3  Gray,  434,  and  the  principles  stated  and  the  precedents 
fcited.  Though  to  some  extent  these  colonies  before  the  Revolution 
[were  distinct  governments  and  might  have  different  laws,  it  was  not 
unreasonable,  as  they  all  derived  their  criminal  jurisi)rudencc  from  the 
English  common  law,  to  regard  the  rule  aijplical)le  to  a  theft  in  an 
English  county  of  goods  carried  by  the  thief  into  another  as  analogous, 
and  adopt  it.  We  are  of  opinion  that  Massachusetts  did  adopt  if.  and 
this  is  established  by  judicial  precedent,  before  and  since  the  Revolu- 
tion, and  is  now  settled  by  authority  as  the  law  of  this  state. 

Thomas,  J.  The  real  question  in  this  case  is,  whether  the  defL-ndant 
can  be  indicted,  convicted,  and  punished  in  this  Commonweallh  for  a 
larceny  committed  in  the  State  of  Rhode  Island.  If  it  were  a  new 
question,  it  would  be  enough  to  state  it.  The  obvious,  the  conclusive 
answer  to  the  indictment  would  be  that  the  olfence  was  conunittcd 
within  the  jurisdiction  of  another,  and,  .so  far  as  this  matter  is  con- 
cerned, independent  state,  of  whose  law  only  it  was  a  violation,  and 
of  which  its  courts  have  exclusive  cognizance.  By  the  law  of  that 
state  the  offence  is  defined  and  its  punishment  measured  ;  by  the  law 
which  the  defendant  has  violated  he  is  to  be  tried.  Whether  the  acts 
done  by  him  constitute  larceny,  and,  if  so,  of  what  degree,  must  be 
determined  by  that  law.  Its  penalties  only  he  has  incurred  ;  its  means 
of  protection  and  deliverance  he  may  justly  invoke,  and  especially  a 
trial  by  a  jury  of  his  peers  in  the  vicinage  where  the  offence  was 
committed. 

This  obvious  view  of  the  question  will  be  found  upon  veHection.  I 
think,  to  be  the  onl\-  one  consistent  with  the  reasonable  security  of  the 
subject  or  the  well-defined  relations  of  the  states.  It  is  well  known 
that  the  laws  of  the  states  upon  tiie  subject  of  larceny  materially  diifcr. 
In  most  of  them  the  common  law  of  larceny  has  been  greatly  modifird 
by  statutes.  The  jurisprudence  of  all  is  not  even  based  on  the  common 
law  ;  in  several  the  civil  law  obtains. 

In  cases  where  a  difference  of  law  exists,  by  which  law  is  the  defend- 
ant to  be  judged,  —  the  law  where  the  otfence  (if  any)  was  conunitted, 
or  where  it  is  tried?  For  example,  the  defendant  is  chargi-d  with 
taking  with  felonious  intent  that  which  is  parcel  of  the  realty,  as  the 


600  COMMONWEALTH   V.   HOLDER.  [CHAP.  XIIL 

gearing  of  a  mill  or  fruit  from  a  tree.  B}'  the  St.  of  1851,  c.  151,  the 
act  is  larcen}'  in  this  Commonwealth.  If  it  appears  that  in  the  state 
where  the  act  was  done  it  was,  as  under  the  common  law,  but  a  tres- 
pass, which  law  has  the  defendant  violated  and  by  which  is  he  to  be 
tried  ?  Or  suppose  the  defendant  to  be  charged  with  the  stealing  of 
a  slave,  —  a  felony  in  the  state  where  the  act  is  done,  but  an  offence 
not  known  to  our  laws.  The  ditflculty  in  both  cases  is  the  same.  You 
have  not  only  conflicting  jurisdictions,  but  different  rules  of  conduct 
and  of  judgment. 

But  supposing  the  definitions  of  the  oflfence  to  be  the  same  in  the 
two  states,  the  punishments  may  be  very  different.  Where  such  differ- 
ence exists,  which  penalty  has  the  defendant  justly  incurred,  and  which 
is  he  to  suffer?  For  example,  the  offence  is  punishable  by  imprison- 
ment in  Rhode  Island,  say  for  a  year ;  in  this  state  the  same  offence  is 
punishable  by  imprisonment  from  one  to  five  years  ;  is  the  defendant 
liable  to  the  heavier  punishment?  Or  suppose  he  has  been  convicted 
in  Rhode  Island,  and  in  consideration  of  his  having  indemnified  the 
owner  for  the  full  value  of  the  goods  taken,  his  punishment  has  been 
more  mercifully  measured  to  him,  can  he,  after  he  has  suffered  the 
punishment,  and  because  the  goods  were,  after  the  larceny,  brought 
into  this  state,  be  made  to  suffer  the  penalt}'  of  our  law  for  the  same 
oflfence?  Or  suppose  him  to  have  been  convicted  in  Rhode  Island  and 
a  full  pardon  extended  to  him,  can  he  be  tried  and  convicted  and  pun- 
ished here  ? 

Again :  the  power  to  indict,  convict,  and  punish  the  offence  in  this 
state  proceeds  upon  the  ground  that  the  original  caption  was  felonious. 
If  the  original  taking  was  innocent  or  but  a  trespass,  the  bringing  into 
this  state  would  not  constitute  a  larceny.  You  must,  therefore,  look  at 
the  law  of  the  state  where  the  first  caption  was  made.  And  how  is  the 
law  of  another  state  to  be  ascertained  ?  What  is  the  law  of  another 
state  is  a  question  of  fact  for  the  jury.  The  jury  in  this  way  are  in  a 
criminal  case  made  not  only  to  pass  upon  the  law,  but  to  pass  upon  it 
as  a  matter  of  evidence,  subject,  strictly  speaking,  neither  to  the 
direction  nor  the  revision  of  the  court. 

Again :  the  defendant  is  indicted  here  for  the  larceny  committed  in 
Rhode  Island ;  while  in  custody  here  awaiting  his  trial,  he  is  demanded 
of  the  Executive  of  this  state  by  the  Executive  of  Rhode  Island  as 
a  fugitive  from  the  justice  of  that  state,  under  the  provisions  of  the 
Constitution  of  the  United  States,  art.  4,  §  2,  and  the  U.  S.  St.  of 
1793,  c.  45.  Is  he  to  be  tried  here,  or  surrendered  up  to  the  state 
where  the  offence  was  committed,  and  tried  there  ?  Or  if  he  has  been 
already  tried  and  convicted  and  punished  in  this  state,  is  he  to  be  sent 
back  to  Rhode  Island  to  be  tried  and  punished  again  for  the  same 
offence?  And  would  his  conviction  and  punishment  here  be  any 
answer  to  the  indictment  there?  Or  if  he  has  been  fully  tried  and 
acquitted  here,  and  then  demanded  by  the  Executive  of  Rhode  Island, 
is  he,  upon  requisition,  to  be  sent  to  that  state  to  be  again  tried,  to 


SECT.  II.]  COMMONWEALTH   V.    HOLDER.  COl 

be  twice  put  in  jeopardy  for  the  same  offence?     It  is  quite  plain  no 
ground  in  law  would  exist  for  a  refu,sal  to  surrender. 

The  defendant  was  indicted  for  larceny,  not  for  the  offence  of  bring- 
ing stolen  goods  into  the  Coniinonwealth,  He  was,  under  the  instruc- 
tion of  the  presiding  judge,  tried  for  the  larceny  in  Rhode  Island,  was 
convicted  for  the  larceny  in  Rhode  Island,  and  must  be  punished,  if 
at  all,  for  the  larceny  in  Rhode  Island.  And  under  the  rule  given  to 
the  jury  is  presented  a  case  where,  for  one  and  the  same  nioral  act, 
for  one  and  the  same  violation  of  the  rights  of  property,  the  subject 
may  be  twice  convicted  and  punished.  Nay,  more,  if  a  man  had  stolen 
a  watch  in  Rhode  Island  and  travelled  with  it  into  every  state  of  the 
Union,  he  might,  under  the  rule  given  to  the  jury,  if  his  life  endured 
so  long,  be  indicted  and  punished  in  thirty-two  states  for  one  and  the 
same  olfence. 

And  it  is  well  to  observe  that  it  is  the  retention  of  the  property 
which  is  the  cause  of  the  new  offence,  and  the  carrying  of  it  from  the 
place  of  caption  into  another  state.  If  the  defendant  had  stolen  prop- 
erty in  Rhode  Island  and  consumed  or  destroyed  it,  and  then  had 
removed  to  Massachusetts,  but  one  offence  would  have  been  committed, 
and  that  in  Rhode  Island. 

Such  are  some  of  the  more  obvious  difficulties  attending  the  position 
that  an  ofTence  committed  in  one  state  may  be  tried  and  punished  in 
another.  The  doctrine  violates  the  first  and  most  elementary  princi- 
ples of  government.  No  state  or  people  can  assume  to  punish  a  man 
for  violating  the  laws  of  another  state  or  people.  The  surrender  of 
fugitives  from  justice,  whether  under  the  law  of  nations,  treaties  with 
foreign  powers,  or  the  provisions  of  the  Constitution  of  tlie  United 
States,  proceeds  upon  the  ground  that  the  fugitive  cannot  be  tried 
and  punished  by  any  other  jurisdiction  than  the  one  whose  laws  have 
been  violated.  Even  in  cases  of  the  invasion  of  one  country  by  the 
subjects  of  another,  it  is  the  violation  of  its  own  laws  of  neutrality 
that  the  latter  Gountry  punishes,  and  not  the  violation  of  the  laws  of 
the  country  invaded.  The  exception  of  piracy  is  apparent  rather  than 
real.  Piracy  may  be  punished  by  all  nations  because  it  is  an  offence 
against  the  law  of  nations  upon  the  seas,  which  are  the  highways  of 
nations. 

The  ruling  of  the  learned  Chief  Justice  of  the  Common  Pleas  was,  I 
may  presume,  based  upon  the  decisions  of  this  court  in  Commonwealth 
V.  Cullins,  1  Ma.ss.  116,  and  Commonwealth  v.  Andrews,  2  Mass.  14. 

It  is  certainly  the  general  duty  of  the  court  to  adhere  to  the  law  as 
decided.  Especially  is  this  the  case  where  a  change  in  the  decision 
would  impair  the  tenure  by  which  the  rights  and  property  of  the  suh- 
ject  are  held.  But  even  with  respect  to  these,  where  it  is  clear  a  case 
has  been  decided  against  the  well  settled  principles  of  law  and  of 
reason,  it  is  the  duty  and  the  practice  of  the  courts  to  revise  such 
decision,  and  to  replace  the  law  on  its  old  and  solid  foundation.  This 
is  peculiarly  the  duty  of  the  courts  where  such  decision  works  its  in- 


G02  COMMONWEALTH   V.   HOLDER.  [CHAP.  XIIL 

justice  In-  impairing  the  personal  rights  of  the  citizen,  or  by  subjecting 
him  to  burdens  and  penalties  which  he  never  justh^  incurred. 

In  my  judgment,  the  courts  of  this  Commonwealth  have  not,  and 
never  had,  under  the  Constitution  of  the  United  States  or  otherwise, 
the  rightful  power  to  try  a  man  for  an  offence  committed  in  another 
state.  It  is  in  vain,  it  seems  to  me,  to  attempt  to  preserve  and  make 
rules  of  conduct  decisions  founded  upon  wholly  erroneous  views  of  the 
relations  which  the  states  of  the  Union  bear  to  each  other  under  the 
Constitution,  and  in  conflict  with  well  settled  principles  of  constitu- 
tional and  international  law. 

I  should  be  content  to  rest  my  dissent  from  the  judgment  of  the 
court  in  the  case  at  bar  upon  the  principles  affirmed  in  the  recent  case 
of  Commonwealth  u.  Uprichard,  3  Gray,  434.  In  effect  that  case 
overrules,  as  its  reasoning  thoroughly  undermines,  the  earlier  cases. 
The}'  cannot  stand  together. 

But  as  the  decision  in  the  case  at  bar  rests  upon  the  authority  of 
the  cases  in  the  first  and  second  of  Massachusetts  Eeports,  it  may  be 
well  to  examine  with  care  the  grounds  upon  which  they  rest.  Such 
an  examination  will  show,  I  think,  not  only  that  the  cases  were  put 
upon  erroneous  views  as  to  the  relation  of  the  states,  but  that  they 
were  also  unsound  at  common  law. 

In  the  case  of  Commonwealth  v.  Cullins,  a  jury  trial  where  three 
judges  of  the  court  were  present,  the  evidence  showing  that  the  goods 
were  taken  in  the  State  of  Rhode  Island,  Mr.  Justice  Sedgwick,  who 
charged  the  jury,  said  that  "  the  court  were  clearly  of  opinion  that 
stealing  goods  in  one  state  and  conveying  stolen  goods  into  another 
state  was  similar  to  stealing  goods  in  one  county  and  conveying  the 
stolen  goods  into  another,  which  was  always  holden  to  be  felony  in 
both  counties."  Whatever  the  points  of  similarity,  there  was  this 
obvious  and  vital  difference,  to  wit,  that  conviction  in  one  county  was 
a  bar  to  conviction  in  another,  and  that  conviction  in  one  state  is  no 
bar  to  conviction  in  another  state. 

It  was  a  doctrine  of  the  common  law  that  the  asportation  of  stolen 
goods  from  one  count}-  to  another  was  a  new  caption  and  felon}-  in 
the  second  county,  —  a  legal  fiction  devised  for  greater  facility  in  con- 
victing the  offender  where  it  was  uncertain  where  the  first  caption  took 
place.  The  foundation  of  the  rule  was  that  the  possession  of  the  owner 
continued,  and  that  everj-  moment's  continuance  of  the  trespass  may 
constitute  a  caption  as  well  as  the  first  taking.  But  in  what  respect 
was  the  taking  in  one  state  and  conveying  into  another  state  similar  to 
the  taking  in  one  county  and  conveying  into  another  county?  It  could 
only  be  "  similar"  because  the  legal  relation  which  one  state  bears  to 
another  is  similar  to  that  which  one  county  bears  to  another ;  because, 
under  another  name,  there  was  the  same  thing.  If  a  man  is  to  be  con- 
victed of  crime  by  analogy,  the  analogy  certainly  should  be  a  close 
one.  Here  it  was  but  a  shadow.  In  the  diflferent  counties  there  was 
one  law,  one  mode  of  trial,  the  same  interpretation  of  the  law,  and  the 


SECT.  II.]  COMMONWEALTH   V.    HOLDER.  6(J3 

same  punishment.     The  rule,  mode  of  triiil,  and  jurisdiction  were  not 
changed. 

The  states  of  the  Union,  it  is  (juite  phiin,  hold  no  such  relation  to 
each  other.  As  to  their  internal  police,  tlieir  hiw  of  crimes  and  punish- 
ments, they  are  wholly  independent  of  eacli  other,  having  no  common 
law  and  no  common  umpire.  The  provision  indeed  in  the  Constitu- 
tion of  the  United  States  for  surrendering  up  fugitives  from  justiee  hy 
one  state  to  another  is  a  clear  recognition  of  the  independence  of  the 
states  of  each  other  in  these  regards.  It  excludes  the  idea  of  any 
jurisdiction  in  one  state  over  crimes  committed  in  another,  ami  at  the 
same  time  saves  any  necessity  or  reason  for  sucli  jurisdiction.  Nor 
is  there  any  provision  in  the  Constitution  of  the  Uniltd  States  whieii 
impairs  such  independence,  so  far  as  the  internal  police  of  the  states 
is  concerned.  On  the  other  hand,  the  widest  diversity  exists  in  the 
institutions,  the  internal  police,  and  the  criminal  codes  of  the  several 
states,  some  of  them,  as  Louisiana  and  Texas,  having  as  the  basis 
of  their  jurisprudence  tlie  civil  and  not  the  common  law.  In  tiie 
relation  which  Louisiana  holds  to  this  State  can  any  substantial  analogy 
be  found  to  that  which  Surrey  bears  to  Middlesex? 

An  analogy  closer  and  more  direct  could  have  been  found  in  the 
books  when  Commonwealtli  v.  Cullins  was  decided.  It  was  that  of 
Scotland  to  England,  subject  both  to  one  crown  and  one  legislature  ; 
yet  it  had  been  decided  that  when  one  stole  goods  in  Scotland  and 
carried  them  to  England,  he  could  not  be  convicted  in  the  latter 
country.  Rex  v.  Anderson  (17G3),  2  East  P.  C.  772;  2  Russell  on 
Crimes  (7th  Amer.  ed  ),  110.  Or  an  analogy  might  have  been  found 
in  the  cases  of  goods  stolen  on  the  high  seas  and  brought  into  the 
counties  of  England,  of  which  the  courts  of  common  law  refused  to 
take  cognizance  because  they  were  not  felonies  committed  within  their 
jurisdiction.  1  Hawk.  c.  33,  §  52 ;  3  Inst.  113.  In  these  cases  a 
test  would  haA-e  been  found,  applicable  to  the  alleged  larceny  of  Cullins, 
to  wit,  the  otTence  was  not  committed  in  a  place  wiLliin  the  jurisdiction 
of  the  court,  but  in  a  place  as  foreign  to  their  jurisdiction,  so  far  as 
this  subject-matter  was  concerned,  as  England  or  the  neighl)oring 
provinces.  The  case  of  Commonwealth  v.  Cullins  has  no  solid  principle 
to  rest  upon. 

The  case  of  Commonwealth  v.  Andrews,  two  years  later,  may  be 
held  to  recognize  the  rule  laid  down  in  Commonwealth  r.  Cullins, 
though  it  was  an  indictment  against  Andrews  as  the  receiver  of  goods 
stolen  b^'  one  Tuttle  in  New  Hampshire  ;  and  though  there  is.  at  the 
least,  plausible  ground  for  saying  that  there  was  a  new  taking  b}' 
Tuttle  at  Harvard  in  the  county  where  the  defendant  was  indicted  and 
tried.  Indeed,  Mr.  Justice  Parker  takes  this  precise  ground  ;  though 
he  adds  that  "  the  common-law  doctrine  respecting  counties  may  well 
be  extended  by  analog}'  to  the  case  of  states  united,  as  these  are, 
under  one  general  government."  If  that  union  was  with  reference  to 
or  concerned  the  internal  police  or  criminal  jurisprudence  of  the  several 


G04  COMMONWEALTH    V.    HOLDER.  [cHAP.   XIIL 

States  ;  if  it  was  not  obviously  for  other  different,  distinct,  and  well 
defined  purposes ;  and  if  we  could  admit  the  right  of  the  court  to 
extend  by  analogy  the  provisions  of  the  criminal  law  and  so  to  enlarge 
its  jurisdiction,  — there  would  be  force  in  the  suggestion.  As  it  is,  we 
must  be  careful  not  to  be  misled  bj-  the  errors  of  wise  and  good  men. 

Judge  Thatcher  puts  the  case  wholly  on  the  felonious  taking  at 
Har\ard. 

Mr.  Justice  Sedgwick,  though  having  the  same  view  as  to  the  taking 
at  Harvard,  does  not  rest  his  opinion  upon  it,  but  upon  the  ground 
that  the  continuance  of  the  trespass  is  as  much  a  wrong  as  the  first 
taking.  This  doctrine  applies  as  well  where  the  original  caption  was 
in  a  foreign  country'  as  in  another  state  of  the  Union.  If  you  hold 
that  every  moment  the  thief  holds  the  property  he  commits  a  new 
felon':,  you  ma}'  multiply  his  offences  ad  inflnituni ;  but  in  so  carrying 
out  vvhat  is  at  the  best  a  legal  fiction,  3'ou  shock  the  common-sense  of 
men  and  their  sense  of  justice.  Mr.  Justice  Sedgwick  will  not  admit 
the  force  of  the  objection  that  the  thief  would  be  thus  twice  punished, 
but  regards  with  coraplacenc}'  such  a  result.  But  as  we  .are  to  pre- 
sume that  the  punishment  is  graduated  to  the  offence,  and,'^S  frfr  as 
punishment  may,  expiates  the  wrong,  the  mind  shrinks  from'suclj  a 
consequence.  But  saying  that  whatever  he  might  think  upon  this 
question  if  it  were  res  Integra^  he  puts  his  decision  upon  the  case^  of 
Paul  Lord,  decided  in  1792,  and  that  of  Commonwealth  v.  CulHns. 

Chief   Justice   Dana    relies   upon    the   cases   before   stated   and   a  ^ 
general   practice,   and   also   upon   the  principle  that  everj'  moment's     / 
felonious  possession  is  a  new  caption. 

Such  was  the  condition  of  the  law  in  this  state  when  the  case  of 
Commonwealth  v.  Uprichard  came  before  the  court.  In  that  case  the 
original  felonious  taking  was  in  the  province  of  Nova  Scotia.  The 
bringing  of  the  stolen  goods  into  this  Commonwealth  was  held  not  to 
be  a  larceny  here.  But  if  it  be  true  that  every  act  of  removal  or  change 
of  possession  is  a  new  caption  and  asportation,  that  every  moment's 
continuance  of  the  trespass  is  a  new  taking,  —  if  this  legal  fiction  has 
any  life,  it  is  difficult  to  see  why  the  bringing  of  the  goods  within 
another  jurisdiction  was  not  a  new  offence.  No  distinction  in  principle 
exists  between  this  case  and  a  felonious  taking  in  another  state  and 
bringing  into  this.  So  far  as  the  law  of  crimes  and  punishments  is 
concerned,  the  states  are  as  independent  of  each  other  as  are  the  States 
and  the  British  Provinces. 

The  case  of  Commonwealth  v.  Uprichard  rests,  I  think  immovably, 
upon  the  plain  grounds  that  laws  to  punish  crime  are  local  and  limited 
to  the  boundaries  of  the  States  which  prescribe  them  ;  that  the  com- 
mission of  a  crime  in  another  State  or  country  is  not  a  violation  of  our 
iaw,  and  does  not  subject  the  offender  to  any  punishment  prescribed  by 
our  law.  These  are  principles  of  universal  jurisprudence,  and  as  sound 
as  they  are  universal. 

It  is  sometimes  said  that  after  all  the  offender  is  only  tried  and  con- 


SECT.  II.]  STANLEY  V.   STATE.  6U5 

victed  for  the  offence  against  our  laws.  This  clearly  is  not  so.  It  is 
only  by  giving  force  to  tiie  law  of  the  country  of  the  original  cai)lion 
that  we  can  establish  the  larei-ny.  It  is  the  continuance  of  the  caption 
felonious  by  the  law  of  the  place  of  caption.  In  the  directions  given 
to  the  jury  such  effect  is  given  to  the  laws  of  Rhode  Island.  The  jury 
were  instructed  that  if  the  defendant  broke  and  entered  into  the  shop 
of  Henry  W.  Dana  in  Sniithheld  in  Rhode  Island  and  thence  brought 
the  goods  into  this  count}',  the  indictuHUit  could  be  maintained.  The 
felonious  taking  in  Rhode  Island  is  the  inception  and  groundwork  of 
the  offence.  The  proceeding  is  in  substance  and  effect  but  a  mode  of 
enforcing  the  laws  of  and  assuming  jurisdiction  over  offences  committed 
in  another  state. 

For  the  reasons  thus  imperfectly  stated,  I  am  of  opinion  that  the 
instructions  of  the  Court  of  Common  Pleas  were  erroneous,  that  the 
exceptions  should  be  sustained,  the  verdict  set  aside,  and  a  new  trial 
granted.  j^y^  Exceptions  ocerruled. 


>?  /-/-fy 


STANLEY   V.   STATE. 
\f^^   y*    ^''v^      "^  *^*  Supreme  Court  of  Ohio.     1873. 

"^  K/*        *     ~'i^  [Reported  24  Ohio  State,  166.] 

McIlvaine,  J.^  At  the  November  term,  1873,  of  the  Court  of 
Common  Pleas  of  Cuyahoga  County,  the  plaintiff  in  error,  William 
Stanley,  was  convicted  of  the  crime  of  grand  larceny,  and  sentenced 
for  a  term  of  years  to  the  penitentiary. 

The  indictment  upon  which  he  was  convicted  charged  "  that  William 
Stanley-,  late  of  the  county  aforesaid,  on  the  twentieth  day  of  June,  in 
the  year  one  thousand  eight  hundred  and  seventy-three,  at  the  countv 
aforesaid,  with  force  and  arms,''  certain  silverware,  "  of  the  goods  and 
chattels  and  property  of  George  P.  Harris,  then  and  there  being,  then 
and  there  unlawfully  and  feloniously  did  steal,  take,  and  carry  awav," 
etc. 

The  following  facts  were  proven  at  the  trial:  1.  That  the  goo<ls 
described  in  the  indictment  belonged  to  Harris,  and  were  of  the  value 
of  one  hundred  and  sixty-five  dollars.  2.  That  they  were  stolen  from 
Harris  on  the  '20th  of  June,  1873,  at  the  city  of  London,  in  the  domin- 
ion of  Canada.  3.  That  they  were  afterward,  on  the  26th  day  of  same 
month,  found  in  the  possession  of  the  defendant,  in  said  county  of 
Cuyahoga.  It  is  also  conceded  that,  in  order  to  convict,  the  jury  must 
have  found  that  the  goods  were  stolen  by  the  defendant  in  tiie  dominion 
of  Canada,  and  carried  thence  by  him  to  the  State  of  Ohio. 

Upon  this  state  of  facts,  was  the  prisoner  lawfully  convicted?     In 

^  The  opinion  only  is  given ;  it  sutSciently  states  the  case. 


606  STANLEY  V.   STATE.  [CHAP.  XIII. 

other  words,  if  property-  be  stolen  at  a  place  beyond  the  jurisdiction  of 
this  state  and  of  the  United  States,  and  afterward  brought  into  this 
state  by  the  thief,  can  he  be  lawfully  convicted  of  larceny  in  this 
state  ? 

In  view  of  the  free  intercourse  between  foreign  countries  and  this 
state,  and  the  immense  immigration  and  importation  of  property  from 
abroad,  this  question  is  one  of  very  great  importance  ;  and  I  may  add 
that  its  determination  is  unaided  by  legislation  in  this  state. 

In  resolving  this  question  we  have  been  much  embarrassed  by  a 
former  decision  of  this  court,  in  Hamilton  v.  Tlie  State,  11  Ohio,  435. 
In  that  case  it  was  held  by  a  majority  of  the  judges  that  a  person 
having  in  his  possession  in  this  state  property  which  had  been  stolen 
by  him  in  another  state  of  the  Union,  might  be  convicted  here  of 
larceny. 

The  decision  appears  to  have  been  placed  upon  the  ground  "  that  a 
long-sustained  practice,  in  the  criminal  courts  of  this  state,  had  settled 
the  construction  of  the  point,  and  established  the  right  to  convict  in 
such  cases." 

AVhether  that  decision  can  be  sustained  upon  the  principles  of  the 
common  law  or  not,  it  must  be  conceded  that  for  more  than  thirt\'- 
years  it  has  stood,  unchallenged  and  unquestioned,  ^s  an  authoritative 
exposition  of  the  law  of  this  state.  And  although  it  has  received  no 
express  legislative  recognition,  it  has  been  so  long  followed  in  our 
criminal  courts,  and  acquiesced  in  hy  other  departments  of  the  govern- 
ment, that  we  are  inclined  to  the  opinion  that  it  ought  not  now  to  be 
overruled ;  but,  on  the  other  hand,  its  rule  should  be  applied  and  sus- 
tained, in  like  cases,  upon  the  principle  of  stare  decisis. 

Before  passing  from  Hamilton  v.  The  State,  it  should  be  added  that 
the  same  question  has  been  decided  in  the  same  way  by  the  courts  of 
several  of  our  sister  States.  The  State  v.  Ellis,  3  Conn.  185  ;  The 
State  V.  Bartlett,  11  Vt.  650 ;  The  State  v.  Underwood,  49  Maine,  181 ; 
Watson  V.  The  State,  36  Miss.  593  ;  The  State  u.  Johnson,  2  Oregon, 
115  ;  The  State  v.  Bennett,  14  Iowa,  479  ;  Ferrell  v.  Commonwealth, 
1  Duvall,  153;  Commonwealth  v.  Cullins,  1  Mass.  116.  The  same 
point  has  been  decided  the  same  way  in  several  subsequent  cases  in 
Massachusetts. 

The  exact  question,  however,  now  before  us  has  not  been  decided  by 
this  court ;  and  we  are  unanimously  of  opinion  that  the  rule  laid  down 
in  Hamilton  v.  The  State  should  not  be  extended  to  cases  where  the 
property  was  stolen  in  a  foreign  and  independent  sovereignty. 

We  are  unwilling  to  sanction  the  doctrine  or  to  adopt  the  practice, 
•whereby  a  crime  committed  in  a  foreign  country,  and  in  violation  of 
the  laws  of  that  country  only,  may,  by  construction  and  a  mere  fiction, 
be  treated  as  an  offence  committed  within  this  state  and  in  violation  of 
the  laws  thereof.  In  this  case  the  goods  were  stolen  in  Canada.  They 
were  there  taken  from  the  custody  of  the  owner  into  the  custody  of  the 
thief.     The   change  of  possession  was  complete.    The  goods   were 


SECT.  II.]  STANLEY    V.    STATE.  607 

afturward  caniuil  by  the  thief  from  the  Dominion  of  Canada  to  the 
State  of  Ohio.  During  the  transit  his  possession  was  continuous  and 
uninterrupted.  Now,  the  tlieory  upon  which  this  couviction  is  sought 
to  be  sustained  is  that  the  legal  possession  of  the  goods  remained  all 
the  while  in  the  owner.  If  this  theory  be  true,  it  is  true  as  a  fiction  of 
the  law  only.  The  fact  was  otherwise.  A  further  theory  in  support 
of  the  conviction  is  that  as  soon  as  the  goods  arriveil  within  the  State 
of  Ohio,  the  tlnef  again  took  them  from  the  possession  of  the  owner 
into  his  own  possession.  This  theory  is  not  supported  by  the  facts, 
uor  is  there  any  presumption  of  law  to  sustain  it. 

That  the  right  of  possession,  as  well  as  the  right  of  i)roperty, 
remained  all  the  time  in  the  owner  is  true  as  matter  of  law.  And  it  is 
also  true,  as  a  matter  of  fiction,  that  the  possession  of  the  thief, 
although  exclusive  as  it  must  have  been  in  order  to  make  him  a  thief, 
is  regarded  as  the  possession  of  the  owner,  for  some  purposes.  Thus, 
stolen  goods,  while  in  the  possession  of  the  tliief,  may  be  again  stolen 
by  another  thief;  and  the  latter  may  be  charged  with  taking  and  carry- 
ing away  the  goods  of  the  owner.  And  for  the  purpose  of  sustaining 
such  charge,  the  possession  of  the  first  thief  will  be  regarded  as  the 
possession  of  the  true  owner.  This  fiction,  however,  in  no  way  changes 
the  nature  of  the  facts  which  constitute  the  crime  of  larceny. 

What  we  deny  is  tliat  a  mere  change  of  place  by  the  thief,  while  he 
continues  in  the  uninterrupted  and  exclusive  possession  of  the  stolen 
property,  constitutes  a  new  "  taking  "  of  the  property,  either  as  matter 
of  fact  or  of  law. 

Larceny,  under  the  statute  of  tliis  state,  is  the  same  as  at  common 
law,  and  may  be  defined  to  be  tlie  felonious  taking  and  carrying  away 
of  the  personal  property  of  another.  But  no  offence  against  this  stat- 
ute is  complete  until  every  act  which  constitutes  an  essential  element 
in  the  crime  has  been  committed  within  the  limits  of  this  state.  The 
act  of  "taking"  is  an  essential  element  in  the  crime,  and  defines  the 
act  by  which  the  possession  of  the  property  is  changed  from  the  owner 
to  the  thief.  But  the  act  of  "  taking  "  is  not  repeated  after  the  change 
of  possession  is  once  complete,  and  while  the  possession  of  the  thief 
continues  to  be  exclusive  and  uninterrupted.  Hence,  a  bailee  or  finder 
of  goods,  who  obtains  complete  possession  without  any  fraudulent 
intent,  cannot  be  convicted  of  larceny  by  reason  of  any  subsequent 
appropriation  of  them. 

We  full}'  recognize  the  common-law  practice,  that  when  property  is 
stolen  in  one  count}',  and  the  thief  is  afterward  found  in  another 
county  with  the  stolen  property  in  his  possession,  he  may  be  imlietod 
and  convicted  in  either  county,  but  not  in  both.  This  practice  obtained 
notwithstanding  the  general  rule  that  every  prosecution  for  a  criminal 
cause  must  be  in  the  count}'  where  the  crime  was  committed.  The 
reason  for  the  above  exception  to  the  general  rule  is  not  certainly 
known,  nor  is  it  important  in  this  case  that  it  should  be  known,  as  it 
relates  to  the  matter  of  venue  only,  and  does  not  all'ect  the  substance 


608  STANLEY  V.    STATE.  [CHAP.  XIII. 

of  the  offence.  "We  are  entireh'  satisfied,  however,  that  the  right  to 
prosecute  the  thief  in  any  county  wherein  he  was  found  in  possession 
of  the  stolen  propert}',  was  not  asserted  by  the  Crown,  because  of  the 
fact  that  a  new  and  distinct  larceny  of  the  goods  was  committed  when- 
ever and  wherever  the  thief  might  pass  from  one  county  into  another. 
His  exemption  from  more  than  one  conviction  and  punishment  makes 
this  proposition  clear  enough.  The  common  law  provided  that  no 
person  should  be  twice  vexed  for  the  same  cause.  It  was  through  the 
operation  of  this  principle  that  the  thief  who  stole  property  in  one 
county,  and  was  afterward  found  with  the  fruits  of  his  crime  in  another, 
could  not  be  tried  and  convicted  in  each  county.  He  was  guilty  of  one 
offence  only,  and  that  offence  was  complete  in  the  county  where  the 
property  was  first  "  taken  "  by  the  thief,  and  removed  from  the  place 
in  which  the  owner  had  it  in  possession. 

When  goods  piratically  seized  upon  the  high  seas  were  afterward 
carried  by  the  thief  into  a  county  of  P^ngland,  the  common-law  judges 
refused  to  take  cognizance  of  the  larceny,  "  because  the  original  act  — 
namely,  the  taking  of  them  —  was  not  any  offence  whereof  the  com- 
mon law  taketh  knowledge  ;  and  by  consequence,  the  bringing  them 
into  a  county  could  not  make  the  same  a  felony  punishable  by  our 
law."     13  Coke,  53  ;  3  Inst.  113  ;  1  Hawk.  c.  19,  sec.  52. 

The  prisoner  was  charged  with  larceny  at  Dorsetshire,  where  he  had 
possession  of  the  stolen  goods.  The  goods  had  been  stolen  by  him  in 
the  island  of  Jersey,  and  afterward  he  brought  them  to  Dorsetshire. 
The  prisoner  was  convicted.  All  the  judges  (except  Raymond,  C.  B., 
and  Taunton,  J,,  who  did  not  sit)  agreed  that  the  conviction  was 
wrong.     Rex  v.  Prowes,  1  Moody  C.  C.  349. 

Propert}'  was  stolen  by  the  prisoner  in  France,  and  was  transported 
to  London,  where  it  was  found  in  his  possession.  Parke,  B.,  directed 
the  jury  to  acquit  the  prisoner  on  the  ground  of  the  want  of  jurisdic- 
tion, which  was  done.     Regina  v.  Madge,  9  Car.  &  P.  29. 

A  similar  decision  was  made  in  a  case  where  the  property  was  stolen 
in  Scotland  and  afterward  carried  by  the  thief  into  England.  2  East 
P.  C.  772,  c.  16,  sec.  156. 

This  rule  of  the  common  law  was  afterward  superseded,  in  respect  to 
the  United  Kingdom,  by  the  statutes  of  13  Geo.  HI.,  c.  21,  sec.  4,  and 
7  and  8  Geo.  IV.,  c.  29,  sec.  76,  whereby  prosecutions  were  authorized 
in  anj'  county  in  which  the  thief  was  found,  in  possession  of  property 
stolen  by  him  in  any  part  of  the  United  Kingdom. 

In  Commonwealth  y.  Uprichard,  3  Gray,  434,  the  property  had  been 
stolen  in  the  province  of  Nova  Scotia,  and  thence  carried  by  the  thief 
into  Massachusetts.  The  defendant  was  convicted  of  larceny  charged 
to  have  been  committed  in  the  latter  state.  This  conviction  was  set 
aside  by  a  unanimous  court,  although  two  decisions  had  been  made  b}' 
the  same  court  affirming  convictions  where  the  property  had  been 
stolen  in  a  sister  state,  and  afterward  brought  b}'  the  thief  into  that 
commonwealth.      Without    overruling   the  older   cases,    Chief-Justice 


SECT,  II.]  STANLEY   V.   STATE.  609 

Sbaw,  in  delivering  the  opinion  of  the  court,  distinguished  between  tlic 
two  classes  of  cases. 

The  following  cases  are  in  point,  that  a  state,  into  which  stolen 
goods  are  carried  by  a  thief  from  a  sister  state,  has  no  jurisiliction  to 
convict  for  the  larceny  of  the  goods,  and  a  fortiori  when  the  goods 
were  stolen  in  a  foreign  country:  In  New  York  :  People  '-.Gardner, 
2  Johns.  477;  People  v.  Schenk,  2  Johns.  47'J.  The  rule  was  after- 
ward changed  in  that  state  by  statute.  New  Jersey  :  The  State  /•. 
Le  Blanch,  2  Vroom,  82.  Pennsylvania:  Simmons  r.  Commonwealth, 
5  Binn.  617.  North  Carolina:  The  State  v.  Brown,  1  Ilayw.  100. 
Tennessee:  Simpson  v.  The  State,  4  Humph.  4oG.  Indiana:  Boall  v. 
The  State,  15  Ind.  378.  Louisiana:  The  State  v.  Keonnals,  14  L. 
An.  278. 

There  are  two  cases  sustaining  convictions  for  larceny  in  the  States, 
where  the  propert}'  had  been  stolen  in  the  British  Provinces :  The 
State  t;.  Bartlett,  11  Vermont,  6.50,  and  The  State  v.  Underwood,  49 
Maine,  181.  In  Bartlett's  case,  the  principle  is  doubted,  but  the  prac- 
tice adopted  in  cases  where  the  propert}'  was  stolen  in  a  sister  state 
was  followed,  and  the  application  of  the  principle  thereby  extended. 
Underwood's  case  was  decided  by  a  majority  of  the  judges. 

After  reviewing  tlie  cases,  we  tliink  the  weight  of  authority  is  against 
the  conviction  and  judgment  below.  And  in  the  light  of  principle,  we 
have  no  hesitancy  in  holding  that  the  court  below  had  no  jurisdiction 
over  the  offence  committed  b}'  the  prisoner. 

The  judgment  below  is  wrong,  unless  every  act  of  the  defendant 
which  was  nocessar}'  to  complete  the  offence  was  committed  within 
the  State  of  Ohio  and  in  violation  of  the  laws  thereof.  This  proposition 
is  not  disputed.  It  is  conceded  by  the  prosecution  that  the  taking  as 
well  as  the  removal  of  the  goods  animo  fiirandi^  must  have  occurred 
within  the  limits  of  Ohio.  It  is  also  conceded  that  the  first  taking,  as 
well  as  the  first  removal  of  the  goods  alleged  in  this  case  to  have  been 
stolen,  was  at  a  place  beyond  the  limits  of  the  state,  and  within  the 
jurisdiction  of  a  foreign  and  independent  sovereignty.  Now,  the  doc- 
trine of  all  the  cases  is  that  the  original  "  taking  "  and  the  original 
asportation  of  the  goods  b}'  the  prisoner  must  have  been  under  such 
circumstances  as  constituted  a  larceny.  If  the  possession  of  the  goods 
by  the  defendant  before  they  were  brought  into  this  state  was  a  lawful 
possession,  there  would  be  no  pretence  that  the  conviction  was  proper. 
The  same,  if  his  possession  was  merely  tortious.  The  theory  of  the 
law  upon  which  the  propriety  of  the  conviction  is  claimed  is  based  on 
the  assumption  that  the  property  was  stolen  in  Canada  by  the  prisoner. 

By  what  rule  sliall  it  be  determined  whether  the  acts  of  the  prisoner, 
whereby  he  acquired  the  possession  of  the  goods  in  Canada,  consti- 
tuted'.the  crime  of  larceny?  By  the  laws  of  this  state?  Certainly 
not.  The  criminal  laws  of  this  state  have  no  extra-territorial  opera- 
tion. If  the  acts  of  the  prisoner,  whereby  he  came  in  possession  of 
the   property  described  in  the  indictment,  were  not   inhibited  by  the 

89 


610  STANLEY  V.   STATE.  [CHAP.  XIII. 

laws  of  Canada,  it  is  perfectl}'  clear  that  be  was  not  guilty  of  larceny 
there.  It  matters  not  that  they  were  such  as  would  have  constituted 
larceny  if  the  transaction  had  taken  place  in  this  state. 

Shall  the  question  whether  or  not  the  "  taking"  of  the  property  by 
the  prisoner  was  a  crime  in  Canada  be  determined  by  the  laws  of  that 
countr}'?  If  this  be  granted,  then  an  act  which  was  an  essential  ele- 
ment in  the  combination  of  facts  of  which  Stanley  was  found  guilty 
was  in  violation  of  the  laws  of  Canada,  but  not  of  this  state ;  and  it 
was  because  the  laws  of  Canada  were  violated  that  the  prisoner  was 
convicted.  If  the  laws  of  that  country  had  been  different,  though  the 
conduct  of  the  prisoner  had  been  the  same,  he  could  not  have  been 
convicted.  I  can  see  no  wa}-  to  escape  this  conclusion,  and  if  it  be 
correct,  it  follows  that  the  acts  of  the  prisoner  in  a  foi'eign  country,  as 
well  as  his  acts  in  this  state,  were  essential  elements  in  his  offence ; 
therefore,  no  complete  offence  was  committed  in  this  state  against  the 
laws  thereof 

I  have  no  doubt  the  legislature  might  make  it  a  crime  for  a  thief  to 
bring  into  this  state  property-  stolen  by  him  in  a  foreign  countrj-.  And 
in  order  to  convict  of  such  crime,  it  would  be  necessary  to  prove  the 
existence  of  foreign  laws  against  larcen}'.  The  existence  of  such 
foreign  laws  would  be  an  ingredient  in  the  statutory  offence.  But  that 
offence  would  not  be  larceny  at  common  law,  for  the  reason  that  larceny 
at  common  law  contains  no  such  element.  It  consists  in  taking  and 
carrying  away  the  goods  of  another  person  in  violation  of  the  rules  of 
the  common  law,  without  reference  to  any  other  law  or  the  laws  of  any 
other  countr}'. 

It  may  be  assumed  that  the  laws  of  meum  et  hium  prevail  in  every 
countr}',  whether  civilized  or  savage.  But  this  state  has  no  concern  in 
them  further  than  to  discharge  such  duties  as  are  imposed  upon  it  by 
the  laws  of  nations,  or  through  its  connection  with  the  general  govern- 
ment, by  treaty  stipulations. 

Our  civil  courts  are  open  for  the  reclamation  of  property  which  may 
have  been  brought  within  our  jurisdiction,  in  violation  of  the  rights  of 
the  owner ;  but  our  criminal  courts  have  no  jurisdiction  over  offences 
committed  against  the  sovereignty  of  foreign  and  independent  states.^ 

Judgment  reversed  and  cause  remanded. 

Day,  C.  J.,  Welch,  Stone,  and  White,  JJ.,  concurring. 

^  In  addition  to  the  cases  cited  in  this  opinion  see  the  following :  That  conviction 
may  not  be  had  when  the  property  was  first  taken  outside  the  jurisdiction,  Lee  v. 
State,  64  Ga.  203 ;  People  t7.  Loughridge,  1  Neb.  11.  That  conviction  may  be  had, 
Stinson  i'.  People,  43  111.  397  ;  Worthington  v.  State,  58  Md.  403  ;  State  v.  Newman,  9 
Nev.  48 ;  State  v.  Hill,  19  S.  C.  435.    See  also  State  v.  Somerville,  21  Me.  14.  —  Ed. 


iJECT.  III.]  'rex   V.   SHARPLESS.  611 

SECTION  in. 
Taking  tcithout  consent. 

REX  V.   SIIARPLESS. 
Crown  Cask  Reserved.     1772. 

[Reported  Leach  (4lh  ed.),  92.] 

At  the  Okl  Bailey  In  May  Session,  1772,  John  Sharplcss  and  Samuel 
Greatrix  were  convicted  before  Mr.  Justice  Guukl,  present  Mr.  Haron 
Adams,  of  stcaUng  six  pair  of  silk  stockings,  the  property  of  Oweu 
Hudson  ;  but  a  doubt  arising  whetlier  the  olfence  was  not  rallier  a 
fraud  than  a  felony,  the  judgment  was  respited,  and  the  question 
referred  to  the  consideration  of  the  judges  upon  the  following  case  : 

On  the  14th  March,  1772,  Samuel  Greatrix,  in  the  character  of 
servant  to  John  Sharpless,  left  a  note  at  the  shop  of  Mr.  Owen 
Hudson,  a  hosier  in  Bridge  Street,  AVestminster,  desiring  that  he 
■would  send  an  assortment  of  silk  stockings  to  his  master's  lodgings,  at 
the  Red  Lamp  in  Queen  Square.  The  hosier  took  a  variety  of  silk 
stockings  according  to  the  direction.  Greatrix  opened  the  door  to  him, 
and  introduced  him  into  a  parlor,  where  Sharpless  was  sitting  in  a 
dressing-gown,  his  hair  just  dressed,  and  rather  more  powder  all  over 
his  face  than  there  was  any  necessity  for.  Mr.  Hudson  unfolded  his 
wares,  and  Sharpless  looked  out  three  pair  of  colored  and  tlirce  pair 
of  white  silk  stockings,  the  price  of  wiiich,  Mr.  Hudson  told  him,  was 
14s.  a  pair.  Sharpless  then  desired  Hudson  to  fetch  some  silk  pieces 
for  breeches,  and  some  black  silk  stockings  with  French  clocks. 
Hudson  hung  the  six  pair  of  stockings  which  Sharpless  had  looked 
out,  on  the  back  of  a  chair,  and  went  home  for  the  other  goods  ;  but  no 
positive  agreement  had  taken  place  respecting  the  stockings.  Dining 
Hudson's  absence  Sharpless  and  Greatrix  decamped  with  the  six  pair 
of  stockings,  which  were  proved  to  have  been  afterwards  pawned  by 
Sharpless  and  one  Dunbar,  an  accomplice  in  some  other  transactions 
of  the  same  kind,  for  which  the  prisoners  were  indicted. 

The  judges  were  of  opinion  that  the  conviction  was  right ;  for  the 
whole  of  the  prisoners'  conduct  manifested  an  original  and  preconcerted 
design  to  obtain  a  tortious  possession  of  tlie  property.  The  verdict  of 
the  jury  imports  that  in  their  belief  the  evil  intention  preceded  the 
leaving  of  the  goods  ;  but,  independont  of  their  verdict,  there  does  not 
appear  a  sufficient  delivery  to  change  the  possession  of  the  property.* 

1  Ace.  U.  S.  V.  Rodgers,  1  Mack.  419.  — Ed. 


612  KEGINA   V.    EDWARDS.  [CHAP.  XIII. 

REGINA  V.   LOVELL. 
Crown  Case  Reserved.     1881. 

[Reported  8  Queen's  Bench  Division,  185.] 

The  following  case  was  stated  for  the  opinion  of  this  court  b}'  the 
Chairman  of  the  Worcestershire  Quarter  Sessions :  — 

The  prisoner  was  tried  before  me  at  the  last  Worcestershire  Quarter 
Sessions  on  an  indictment  which  charged  him  in  the  first  count  with 
stealing  the  sum  of  os.  Gel,  the  propert}'  of  Eliza  Grigg,  and  in  the 
second  count  with  demanding  with  menaces  from  the  said  Eliza  Grigg 
the  sum  of  5s.  6d.  with  intent  to  steal  the  same.  The  facts  were  these : 
The  prisoner  was  a  travelling  grinder.  He  ground  two  pairs  of  scis- 
sors for  the  prosecutrix,  for  which  he  charged  her  fourpence.  She  then 
handed  him  six  knives  to  grind.  He  ground  them  and  demanded 
5s.  6d.  for  the  work.  She  refused  to  pay  the  amount  on  the  ground 
that  the  charge  was  excessive.  The  prisoner  then  assumed  a  menacing 
attitude,  kneeling  on  one  knee,  and  threatened  prosecutrix,  saying, 
"  You  had  better  pay  me,  or  it  will  be  worse  for  you,"  and  "  I  will 
make  you  paj'."  The  prosecutrix  was  frightened  and  in  consequence 
of  her  fears  gave  the  prisoner  the  sum  demanded.  Evidence  was  given 
that  the  trade  charge  for  grinding  the  six  knives  would  be  Is.  Sd. 

It  was  contended  for  the  prisoner  that  as  some  money  was  due,  the 
question  rested  simply  on  a  qifantum  meruit,  and  that  there  was  no 
larcen}'  or  menacing  demand  with  intent  to  steal. 

I  overruled  the  objection  and  directed  the  jury  on  the  authority'  of 
Regina  v.  M'Grath,  Law  Rep.  1  C.  C.  R.  205,  that  if  the  money  was 
obtained  by  fi'ightening  the  owner,  the  prisoner  was  guilt}'  of  larcen3\ 

The  jurj'  found  that  the  mone}'  was  obtained  from  the  prosecutrix  b}' 
menaces  and  that  the  prisoner  was  guilty-. 

I  reserved  for  the  consideration  of  this  court  the  question  whether 
upon  the  facts  stated  he  was  pi'operly  convicted. 

Per  Curiam.  The  conviction  in  tliis  case  was  right.  Regina  v. 
M'Grath  is  conclusive  of  the  matter.^ 


REGINA  V.   EDWARDS. 
CR0^VN  Case  Reserved.     1877. 

[Reported  13  Cox  C.  C.  384.) 

The  prisoners  were  tried  at  the  West  Kent  Quarter  Sessions,  held  at 
Maidstone,  on  the  5th  of  Januar}',  1877,  on  an   indictment   charging 

1  Ace.  Reg.  r.  MacGrath,  11  Cox  C.  C.  347  ;  Reg.  v.  Plazell,  11  Cox  C.  C.  597; 
State  V.  Bryant,  74  N.  C.  124.     See  U.  S.  v.  Murphy,  McA.  &  M.  375.  —Ed. 


SECT.  III.]  REGINA   V.    EDWARDS.  613 

them  with  stealing  three  dead  pigs,  tlie  property  of  Sir  William  Hart 
Dyke,  Bart. 

The  evidence  was  to  the  following  cirect:  Tlie  three  pigs  in  question 
having  been  bitten  by  a  mad  dog,  Sir  William  Hart  Dyke,  to  whom 
they  belonged,  directed  his  steward  to  shoot  them.  The  steward 
thereupon  shot  them  each  tlirough  the  head  and  ordered  a  man  named 
Pay  lis  to  bury  them  behind  the  barn.  Tin-  steward  stated  that  he  had 
no  intention  of  digging  them  up  again  or  of  making  any  use  of  them. 
Paylis  buried  the  jngs,  pursuant  to  directions,  behind  the  barn  on  land 
belonging  to  Sir  William  Hart  Dyke,  in  a  place  where  a  brake-stack 
is  usually  placed.  The  hole  in  which  the  pigs  were  buried  was  three 
feet  or  more  deep,  and  the  soil  was  trodden  in  over  them. 

The  prisoner  Edwards  was  employed  to  help  Paylis  to  bury  the  pigs. 
Edwards  was  seen  to  be  covering  the  pigs  with  l>rakes,  and  in  answer 
to  Paylis's  question  why  he  did  so,  said  that  it  would  keep  the  water 
out,   and  it  was  as  well  to  bury  them  "  clean  and  decent." 

The  two  prisoners  went  the  same  evening  and  dug  up  the  pigs,  and 
took  them  to  the  railway  station,  covered  up  in  sacking,  with  a  state- 
ment that  they  were  three  sheep,  and  sent  them  off  for  sale  to  a  sales- 
man in  the  London  Meat  Market,  where  they  were  sold  for  £9  3^.  'Jii.^ 
which  was  paid  to  the  prisoners  for  tliem. 

The  counsel  for  the  prisoners  submitted  that  there  was  no  evidence 
in  support  of  the  charge  to  go  to  the  jury,  on  the  following  grounds: 
tirstl}',  that  the  property  was  not  proved  as  laid  in  the  indictment,  as 
Sir  William  Hart  Dyke  had  abandoned  his  property  in  the  pigs ; 
secondly,  that  under  the  circumstances  the  buried  pigs  were  of  no 
value  to  the  prosecutor;  an  1,  thirdly,  that  under  tlie  circumstances 
the  buried  pigs  were  attached  to  the  soil,  and  could  not  be  the  subject 
of  larceny. 

The  Chairman,  however,  thought  that  the  case  was  one  for  the  jury, 
and  directed  them,  as  to  the  first  point,  that  in  his  0{)inion  there  had 
been  no  abandonment,  as  Sir  William's  intention  was  to  prevent  the 
pigs  being  made  any  use  of;  but  that  if  the  jury  were  of  opinion  that 
he  had  abandoned  the  property  they  should  acquit  the  prisoners.  He 
also  told  the  jury  that  he  thought  there  was  nothing  in  the  other  two 
objections. 

The  jury  found  the  prisoners  guilt}'. 

The  question  for  the  consideration  of  the  court  is  whether,  having 
reference  to  the  objections  taken  b}-  prisoners'  counsel,  there  was  evi- 
dence on  which  the  jury  were  justified  is  convicting  the  prisoners  of 
larceny. 

If  the  answer  to  this  question  be  in  the  negative,  then  the  conviction 
to  be  quashed,  otherwise  affirmed. 

No  counsel  appeared  to  argue  ou  either  side. 

By  the  Court  :  Conviction  affirmed. 


614  EEGINA   V.   HANDS.  [CHAP.  XIII. 


REGINA  V.   HANDS. 
Crown  Case  Reserved.     1887. 

[Reported  16  Cox  C.  C.  188.] 

Case  reserved  by  the  Quarter  Sessions  for  the  County  of  Gloucester 
as  follows :  — 

Prisoners  Hands  and  Phelps  were  severally  indicted  for  that  on  the 
29th  day  of  November,  1886,  they  did  feloniously  steal,  take,  and  carry 
away  one  cigarette,  of  the  goods  and  chattels  of  Edward  Shenton, 
against  the  peace  of  our  said  Lady  the  Queen. 

Prisoner  Jenner  was  indicted  for  an  attempt  to  steal,  etc. 

Prisoners  Jenner  and  Phelps  pleaded  guilty. 

Prisoner  Henry  Hands  pleaded  not  guilty  and  was  given  in  charge  to 
the  jurj'. 

This  is  a  case  of  larceny  from  what  is  known  as  an  "  automatic  box," 
and  the  circumstances  are  as  follows :  — 

Mr.  Edward  Shenton  is  the  lessee  of  the  Assembly  Rooms  at  Chel- 
tenham, and  lias  fixed  against  the  wall  of  the  passage  leading  from  the 
High  Street  to  the  rooms  an  "  automatic  box." 

This  box  presents  the  appearance  of  a  cube  of  about  eight  or  ten 
inches,  and  in  the  upper  right-hand  corner  (facing  the  operator)  of  the 
front  face  there  is  a  horizontal  slit,  or  opening,  of  sufficient  size  to  admit 
a  pennj'  piece. 

In  the  centre  of  the  face  is  a  projecting  button  or  knob  about  the 
size  of  a  shilling. 

In  the  lower  left-hand  corner  is  a  horizontal  slit,  or  opening,  of  suffi- 
cient size  to  allow  of  the  exit  of  a  cigarette. 

There  is  an  inscription  on  the  face  of  the  box ;  "  Only  pennies,  not 
halfpennies." 

Also:  "To  obtain  an  Eg^-ptain  Beauties  cigarette,  place  a  penny  in 
the  box  and  push  the  knol)  as  far  as  it  will  go." 

If  these  directions  are  followed  a  cigarette  will  be  ejected  from  the 
lower  slit  on  to  a  bracket  placed  to  receive  it. 

The  box  is  the  property  of  the  Automatic  Box  Company.  The  cig- 
arettes with  which  it  was  charged  belonged  to  Mr.  Shenton. 

For  some  time  past  Mr.  Shenton  has  found  on  clearing  the  box, 
which  he  did  once  or  twice  a  day,  that  a  large  number  of  metal  disks 
(brass  and  lead)  of  the  size  and  shape  of  a  penny  had  been  put  in,  and 
a  corresponding  number  of  cigarettes  had  been  taken  out. 

In  consequence  of  this  discover}'  a  watch  was  set  upon  the  box,  and 
upon  the  day  named  in  the  indictment,  the  box  having  been  previously 
cleared,  two  gentlemen  were  seen  to  go  to  it;  each  put  something  ia 
and  each  took  a  cigarette  as  it  appeared. 


SECT.  III.]  REGINA  V.    HANDS.  615 

The  box  was  then  examined  and  found  to  contain  one  Englisli  penny 
and  one  Fiench  penny.  These  coins  were  left  in.  The  box  was  locked 
and  tlie  watcii  was  again  set. 

Shortly  after  this,  three  lads  (afterwards  proved  to  be  the  three  pris- 
oners) were  seen  to  come  to  the  entrance  of  the  passage.  One  of  them 
came  in,  went  to  the  box,  put  something  in,  obtained  a  cigarette,  and 
then  rejoined  the  other  two  at  the  entrance.  Tliis  was  rejjeated  a 
second  time.  The  third  time  it  was  observed  that  the  box  would  not 
work,  and  while  the  lad,  who  afterwards  was  found  to  Ijo  the  i)risoner 
Jenner,  was  pushing  at  the  knob  the  watchman  came  from  his  place  of 
concealment  and  put  his  hand  upon  him. 

The  box  was  then  opened  and  a  piece  of  lead  was  discovered  stuck 
in  the  ''  valve,"  which  had  the  effect  of  preventing  the  machinery  of  the 
box  from  working. 

It  was  then  found  that  the  box  contained  (besides  the  English  and 
French  pennies  alread}-  mentioned)  two  disks  of  brass  about  the  size 
and  shape  of  a  penny. 

No  other  coin  or  metal  piece  was  found  in  the  box,  and  no  one  (but 
the  three  lads  as  above  mentioned)  had  approached  it  after  the  two 
gentlemen  who  had  put  iu  the  English  and  French  pennies. 

The  prisoner  Jenner  was  given  in  charge  to  the  police,  and  the  two 
other  prisoners  were  subsequently  apprehended. 

Upon  being  brought  together  at  the  police  station  the  prisoners  all 
made  statements  more  or  less  implicating  themselves  and  each  other. 

The  prisoner  Hands  said  :  "  Me  and  Jenner  met  Phelps  about  7.45 
p.  M.  Phelps  said  :  '  I  want  to  go  to  Dodwell's.'  I  did  not  go  and  we 
went  down  into  the  High  Street.  Phelps  and  Jenner  stopped  by  the 
Assembly  Rooms  and  went  in  ;  I  remained  outside.  I  believe  Jenner 
was  caught  at  the  box.  Mr.  Shenton's  man  took  him  inside.  I  after- 
wards put  a  penny  in  the  box  and  had  a  cigarette  myself.  Tiic  pieces 
of  brass  produced  are  cut  in  our  shop,  the  blacksmith's  .shop  at  Mr. 
Marshall's." 

In  leaving  the  case  to  the  jury  the  learned  chairman  told  thorn  that 
they  would  have  to  consider:  First,  was  there  a  theft  committed  ;  that 
is,  was  Mr.  Shenton  unlawfull}'  deprived  of  his  property  without  his 
knowledge  or  consent?  Secondly,  if  that  were  so,  were  the}*  satisfied 
that  the  prisoner  (Hands)  took  any  part  in  the  robbery?  He  also  told 
them  that  if  they  thought  that  the  prisoner  was  one  of  the  tiirec  lads 
who  came  to  the  entrance  of  the  passage,  and  that  he  was  there  with  the 
others  for  the  common  purpose  of  unlawfull}'  taking  the  cigarettes  from 
the  box  ;  or  that  he  afterwards  partook  of  the  proceeds  of  the  robbery  ; 
or  that  he  had  taken  a  part  in  making  the  disks,  knowing  for  what 
purpose  they  were  to  be  used,  —  that  they  would  be  justified  in  find- 
ing him  guilty  although  he  might  not  actually  have  put  the  disks  into 
the  box  or  have  taken  out  a  cigarette. 

The  jury  found  the  prisoner  (Hands)  guilty,  and  upon  motion  in  ar- 
rest of  judgment  on  the  ground  that  "  the  facts  as  disclosed  by  the  evi 


616  MITCHUM   V.    STATE.       -  [CHAl".  XIIL 

dence  were  not  sufficient  to  constitute  a  larceu}-,"  all  the  prisoners  were 
allowed  to  stand  out  on  bail  until  the  next  Quarter  Sessions. 

The  question  for  the  court  was  whether  the  facts  as  disclosed  by  the 
evidence  were  sufficient  to  constitute  a  larceny. 

No  one  appeared  on  either  side. 

Lord  Coleridge,  C.  J.  In  this  case  a  person  was  indicted  for  com- 
mitting a  larceny  from  what  is  known  as  an  "  automatic  box,"  which 
was  so  constructed  that  if  you  put  a  penn}'  into  it  and  pushed  a  knob 
in  accordance  with  the  directions  on  the  box  a  cigarette  was  ejected  on 
to  a  bracket  and  presented  to  the  giver  of  the  penny.  Under  these 
circumstances  there  is  no  doubt  that  the  prisoners  put  in  the  box  a 
piece  of  metal  which  was  of  no  value,  but  which  produced  the  same 
effect  as  the  placing  a  penny  in  the  box  produced.  A  cigarette  was 
ejected,  which  the  prisoners  appropriated ;  and  in  a  case  of  that  class 
it  appears  to  me  there  clearly  was  larceny.  The  means  by  which  the 
cigarette  was  made  to  come  out  of  the  box  were  fraudulent  and  the 
cigarette  so  made  to  come  out  was  appropriated.  It  is  perhaps  as  well 
to  say  that  the  learned  chairman  somewhat  improperly  left  the  question 
to  the  jur}'.  He  told  them  that  if  they  thought  that  the  prisoner  Hands 
was  one  of  the  three  lads  who  came  to  the  entrance  of  the  passage  and 
that  he  was  there  with  the  others  for  the  common  purpose  of  unlawfully 
taking  the  cigarettes  from  the  box,  or  that  he  afterwards  partook  of  the 
proceeds  of  the  robbery,  they  would  be  justified  in  finding  him  guilty, 
—  he  did  not  say  larcenoush'  or  feloniousl}' ;  and  he  further  directed 
them  that  if  they  thought  the  prisoner  had  taken  a  part  in  making  the 
disks,  knowing  for  what  purpose  they  were  to  be  used,  they  would  be 
justified  in  finding  him  guilty  although  he  might  not  actually  have  put 
the  disks  into  the  box  or  have  taken  out  a  cigarette.  Now  I  am  not 
quite  sure  that  simply  the  fact  of  doing  an  unlawful  thing,  as  joining  in 
the  manufacture  of  a  disk  that  some  one  else  was  to  use,  would  make 
him  guilty  of  larceny.  He  might  be  guiltj'  of  something  else,  but  I 
doubt  very  much  whether  he  could  be  convicted  of  larceny.  As  upon 
the  facts  of  the  case,  however,  I  do  not  think  that  the  jury  could  have 
been  misled,  and  as  upon  the  facts  there  was  undoubtedly  a  larceny 
committed,  I  am  not  disposed  to  set  aside  the  conviction. 
Pollock,  B.,  Stephen,  Mathew,  and  Wills,  JJ.,  concurred. 

Convictio7i  affirmed. 


MITCHUM  V.   STATE. 
Supreme  Court  of  Alabama.     1871. 

[Reported  45  Alabama,  29.] 

Appeal  from  Circuit  Court  of  Shelby.  Tried  before  Hon.  Charles 
Pelham.  The  facts  material  to  the  point  decided  will  be  found  in  the 
opinion. 


SECT.  III.]  REGINA   V.   MIDDLETON.  617 

Cobb  it  Lewis,  for  appellant.  The  tcstimon}'  shows  that  the 
matches  were  placed  upon  the  counter  for  the  ii.se  of  the  puljlic,  and 
the  accoiuuKxlation  of  the  public,  that  any  and  every  person  had  the 
right  to  take  the  matches  without  limit,  to  light  their  pipes  and  cigars. 
The  defendant  certainly  had  the  right  to  take  the  matches  to  light  bis 
pipe  or  cigar,  and  he  had  the  right  to  use  the  entire  l)ox  in  this  way. 
The  fact  that  he  may  have  used  them  for  a  dilfereiit  i)urpose  would  not 
make  the  taking  felonious.  There  can  be  no  larceny  where  the  owner 
consents  to  the  taking.  The  taking  nuist  be  without  authority  and 
against  the  will  of  the  owner.  If  the  taking  is  not  felonious,  although 
the  property  ma}'  be  converted  to  an  improper  use,  yet  the  defendant 
is  not  guilty  of  larceny. 

John  W.  A.  Sanford,  Attorney  General,  contra. 

Saffold,  J.  The  defendant  was  indicted  for  petit  larceny-  On 
the  trial  the  evidence  material  to  the  exception  taken  by  him  was  that 
the  box  of  matches,  the  subject  of  the  larcen}-,  was  placed  on  the 
counter  of  the  store,  to  be  used  b}-  the  public  in  lighting  their  pipes  and 
cigars  in  the  room,  and  for  their  accommodation,  and  was  taken  there- 
from by  the  defendant.  The  court  was  requested  by  the  prisoner  to 
charge  the  jury  that  if  the  matches  were  placed  on  the  counter  of  the 
store-bouse  for  the  use  of  customers,  or  the  public,  and  they  were 
taken  while  there  for  such  use,  the  defendant  was  not  guilty.  The 
charge  was  refused,  and  the  defendant  excepted. 

Larcen}'  may  be  committed  of  property  under  the  circumstances 
attached  to  tbe  box  of  matches.  The  owner  bad  not  abandoned  bis 
right  to  them.  The}'  could  only  be  appropriated  in  a  particular  manner 
and  in  a  very  limited  quantity  with  his  consent.  Taking  them  by  the 
boxful  without  felonious  intent  would  have  been  a  trespass,  and  with 
it,  a  larceny.     The  ownership  was  sufficiently  proved. 

The  judgment  is  affirmed. 


K 


REGINA  V.  MIDDLETON. 
1^  Crown  Case  Reserved.     1873. 


{Reported  Law  Reports,  2  Crown  Cases  Resen-ed,  38.] 

Case  stated  by  the  Common  Sergeant  of  London. 

At  the  session  of  the  Central  Criminal  Court  held  on  Monday,  the 
23d  of  September,  1872,  George  Middleton  was  tried  for  feloniously 
stealing  certain  money  to  the  amount  of  £8  16s.  10(7.  of  the  moneys  of 
the  Postmaster-General. 

The  ownership  of  the  money  was  laid  in  other  counts  in  the  Queen 
and  in  the  mistress  of  the  local  post-office. 

It  was  proved  by  the  evidence  that  the  prisoner  was  a  depositor  in  a 
post-office  savings-bank,  in  which  a  sum  of  lis.  stood  to  his  credit. 


\ 


CIS  EEGINA   V.    MIDDLETON.  [CHAP.  XIII. 

In  accordance  with  the  practice  of  the  bank,  he  duly  gave  notice  to 
withdraw  10^\,  stating  in  such  notice  the  number  of  his  depositor's  book, 
the  name  of  the  post-office,  and  the  amount  to  be  withdrawn. 

A  warrant  for  10s.  was  duly  issued  to  the  prisoner,  and  a  letter  of 
advice  was  duly  sent  to  the  post-office  at  Notting  Hill  to  pay  the  pris- 
oner 10s.  He  presented  himself  at  that  post-office  and  handed  in  his 
depositor's  book  and  the  warrant  to  the  clerk,  who,  instead  of  referring 
to  the  proper  letter  of  advice  for  10s.,  referred  by  mistake  to  another 
letter  of  advice  for  £8  16s.  lOcZ.,  and  placed  upon  the  counter  a  £5 
note,  three  sovereigns,  a  half-sovereign,  and  silver  and  copper,  amount- 
ing altogether  to  £8  IGs.  lOcZ.  The  clerk  entered  the  amount  paid,  viz., 
£8  16s.  lOc?.  in  the  prisoner's  depositor's  book  and  stamped  it,  and  the 
prisoner  took  up  the  money  and  went  away. 

The  mistake  was  afterwards  discovered,  and  the  prisoner  was  brought 
back,  and  upon  his  being  asked  for  his  depositor's  book,  said  he  had 
burnt  it.  Other  evidence  of  the  prisoner  having  had  the  mone}'  was 
given. 

It  was  objected  by  counsel  for  the  prisoner  that  there  was  no  larceny, 
because  the  clerk  parted  with  the  propert}-  and  intended  to  do  so,  and 
because  the  prisoner  did  not  get  possession  b}-  any  fraud  or  trick. 

The  jury  found  that  the  prisoner  had  the  animus  furandi  at  the  mo- 
ment of  taking  the  money  from  the  counter,  and  that  he  knew  the  money 
to  be  the  monej'  of  the  Postmaster-General  when  he  took  it  up. 

A  verdict  of  guilt}-  was  recorded,  and  the  learned  Common  Sergeant 
reserved  for  the  opinion  of  the  Court  for  Crown  Cases  Reserved  the 
question  whether  under  the  circumstances  above  disclosed  the  prisoner 
was  properl}-  found  guilty  of  larcen}'. 

Nov.  23,  1872.  The  Court  [Kelly,  C.  B.  Martin,  B.,  Brett,  Grove, 
and  Quain,  J  J.]  reserved  the  case  for  tlie  opinion  of  all  the  judges. 

Jan.  25,  1873.  The  case  was  argued  before  Cockburn,  C.  J.,  Bovill, 
C.  J.,  Kelly,  C.  B.,  Martin,  Bramwell,  Pigott,  and  Cleasby,  BB., 
Blackburn,  Keating,  Mellor,  Brett,  Lush,  Grove,  Quain,  Denman,  and 
Archibald,  JJ. 

No  counsel  appeared  for  the  prisoner. 

Sir  J.  D.  Coleridge^  AM.  (^Metcalfe  and  Slade  with  him),  for  the 
prosecution. 

The  arguments  and  the  cases  cited  sufficiently  appear  from  the 
judgments. 

Jan.  28.  Per  Curiam.  The  majority  of  the  judges  think  that  the 
conviction  ought  to  be  affirmed,  for  reasons  to  be  stated  hereafter. 

June  7.     The  following  judgments  were  delivered  :  — 

BoviLL,  C.  J.,  read  the  judgment  of  Cockburn,  C.  J.,  Blackburn, 
Mellor,  Lush,  Grove,  Denman,  and  Archibald,  JJ.,  as  follows :  ^  — 

We  agree  that  according  to  the  decided  cases  it  is  no  felonj'  at  com- 
mon law  to  steal  goods  if  the  goods  were  already  lawfully  in  the  pos- 

*  Part  of  this  opinion  is  omitted. 


SECT.  III.]  REGINA    V.    MIDDLETOX.  010 

session  of  the  thief;  ami  lh:it,  therefore,  at  common  luw  a  bailee  of 
goods,  or  a  person  who  liiuls  goods  lost,  and  not  knowing  or  having  the 
means  of  knowing  whose  they  were,  takes  possession  of  them,  is  not 
guilty  of  larceny  if  he  subsequently,  with  full  knowledge  and  felonious 
intention,  converts  them  to  his  own  use. 

It  is,  to  say  the  least,  very  doubtfid  whether  this  doctrine  is  either 
wise  or  just ;  and  the  legislature,  in  the  case  of  bailees,  have  by  statute 
enacted  that  bailees  stealing  goods,  &c.,  shall  be  guilty  of  larceny,  with- 
out reference  to  the  subtle  exceptions  engrafted  by  the  cases  on  the  old 
law.  But  in  such  a  case  as  the  present  there  is  no  statute  applicable, 
and  we  have  to  apply  the  common  law. 

Now,  we  find  that  it  has  been  often  decided  that  where  the  true  owner 
did  part  with  the  physical  possession  of  a  chattel  to  the  prisoner,  and 
therefore  in  one  sense  the  taking  of  the  possession  was  not  against  his 
will,  yet  if  it  was  proved  that  the  prisoner  from  the  beginning  had  the 
intent  to  steal,  and  with  that  intent  obtained  the  possession,  it  is  sulli- 
cient  taking.  We  are  not  concerned  at  present  to  inquire  whether 
originally  the  judges  ought  to  have  introduced  a  distinction  of  this  sort, 
or  ought  to  have  left  it  to  the  legislature  to  correct  the  mischievous  nar- 
rowness of  the  common  law,  but  only  whetiier  this  distinction  is  not  now 
established,  and  we  think  it  is.  The  cases  on  the  subject  are  collected 
in  Russell  on  Crimes,  4th  cd.  vol.  2,  p.  207  ;  perhaps  those  that  most 
clearly  raise  the  point  are  Rex  v.  Davenport,  2  Russell  on  Crimes,  4th 
ed.  at  p.  201,  and  Rex  v.  Savage,  5  C.  &  P.  143,  2  Russell  on  Crimes, 
4th  ed.  at  p.  201. 

In  the  present  case  the  finding  of  the  jury,  that  the  prisoner,  at  the 
moment  of  taking  the  money,  had  the  animus  faratuli  and  was  aware 
of  the  mistake,  puts  an  end  to  all  objection  arising  from  the  fact  that 
the  clerk  meant  to  part  with  the  possession  of  the  money. 

On  the  second  question,  namely,  whether,  assuming  that  the  clerk 
was  to  be  considered  as  having  all  the  authority  of  the  owner,  the  in- 
tention of  the  clerk  (such  as  it  was)  to  part  with  the  property  prevents 
this  from  being  larceny,  there  is  more  difficulty,  and  there  is,  in  fact,  a 
serious  difference  of  opinion,  though  the  majority,  as  already  stated, 
think  the  conviction  right.  The  reasons  which  lead  us  to  this  conclu- 
sion are  as  follows  :  At  common  law  the  property  in  personal  goods 
passes  by  a  bargain  and  sale  for  consideration,  or  a  gift  of  them  accom- 
panied by  delivery  ;  and  it  is  clear  from  the  very  nature  of  the  thing 
that  an  intention  to  pass  the  i)roperty  is  essential  both  to  a  sale  and  to 
a  gift.  But  it  is  not  at  all  true  that  an  intention  to  pass  the  property, 
even  though  accompanied  by  a  delivery,  is  of  itself  equivalent  to  either 
a  sale  or  a  gift.  We  will  presently  explain  more  fully  what  we  mean, 
and  how  this  is  material.  Now,  it  is  established  that  where  a  bargain 
between  the  owner  of  the  chattel  has  been  made  with  another,  by  which 
the  property  is  transferred  to  the  other,  the  property  actually  passes, 
though  the  bargain  has  been  induced  by  fraud.  The  law  is  thus  stated 
in  the  judgment  of  the  Exchequer  Chanibcr  in  Clough  r.  London  and 


620  REGINA   V.   MIDDLETON.  [CHAP.  XIII 

Northwestern  R}-.  Co.,  Law  Rep.  7  Ex.  26,  at  pp.  34,  35,  where  it  is 
said,  ''  We  agree  eompletelj-  with  what  is  stated  by  all  the  judges  be- 
low, that  the  property  in  the  goods  passed  from  the  London  Pianoforte 
Co.  to  Adams  by  the  contract  of  sale ;  the  fact  that  the  contract  was 
induced  by  fraud  did  not  render  the  contract  void,  or  prevent  the  pro^v 
erty  from  passing,  but  merely  gave  the  part^'  defrauded  a  right,  on  dis- 
co^eiing  the  fraud,  to  elect  whether  he  would  continue  to  treat  the 
contract  as  binding,  or  would  disaffirm  the  contract  and  resume  his  prop- 
erty. .  .  .  We  think  that  so  long  as  he  has  made  no  election,  he  retains 
the  right  to  determine  it  either  vfay,  subject  to  this,  that  if  in  the  inter- 
val, whilst  he  is  deliberating,  an  innocent  third  party  has  acquired  au 
interest  in  the  property,  or  if,  in  consequence  of  his  dela}-,  the  position 
even  of  the  wrong-doer  is  affected,  it  will  preclude  him  from  exercising 
his  right  to  rescind." 

It  follows  obviouslj'  from  this  that  no  conversion  or  dealing  with  the 
goods,  before  the  election  is  determined,  can  amount  to  a  stealing  of 
the  vendor's  goods  ;  for  they  had  become  the  goods  of  the  purchaser, 
and  still  remained  so  when  the  supposed  act  of  theft  was  committed. 
There  are,  accordingly,  many  cases,  of  wliich  the  most  recent  is  Reg.  u. 
Prince,  Law  Rep.  1  C.  C.  150,  which  decide  that  in  such  a  case  the 
guilty  party  must  be  indicted  for  obtaining  the  goods  by  false  pre- 
tences, and  cannot  be  convicted  of  larceny.  In  that  case,  however, 
the  money  was  paid  to  the  holder  of  a  forged  check  payable  to  bearer, 
and  therefore  vested  in  the  holder,  subject  to  the  right  of  the  bank  to 
divest  the  propertj*. 

In  the  present  case  the  propert}'  still  remains  that  of  the  Postmaster- 
General,  and  never  did  vest  in  the  prisoner  at  all.  There  was  no  con- 
tract to  render  it  his  which  required  to  be  rescinded  ;  there  was  no  gift 
of  it  to  him,  for  there  was  no  intention  to  give  it  to  him  or  to  an}'  one. 
It  was  simpl}'  a  handing  it  over  bj'  a  pure  mistake,  and  no  property 
passed.  As  this  was  money,  we  cannot  test  the  case  b}'  seeing  whether 
an  innocent  purchaser  could  have  held  the  property.  But  let  us  sup- 
pose that  a  purchaser  of  beans  goes  to  the  warehouse  of  a  merchant 
with  a  genuine  order  for  so  manj'  bushels  of  beans,  to  be  selected  from 
the  bulk  and  so  become  the  propert}'  of  the  vendee,  and  that  by  some 
strange  blunder  the  merchant  delivers  to  him  an  equal  bulk  of  coffee. 
If  that  coffee  was  sold  (not  in  market  overt)  by  the  recipient  to  a  third 
person,  could  he  retain  it  against  the  merchant,  on  the  ground  that  he 
had  bought  it  from  one  who  had  the  property  in  the  coffee,  though  sub- 
ject to  be  divested?  We  do  not  remember  any  case  in  which  such  a 
point  has  arisen,  but  surely  there  can  be  no  doubt  he  could  not ;  and 
that  on  the  principle  enunciated  by  Lord  Abinger,  in  Chanter  v.  Hop- 
kins, 4  M.  &  W.  at  p.  404,  when  he  says  :  "  If  a  man  offers  to  buy  peas 
of  another,  and  he  sends  him  beans,  he  does  not  perform  his  contract, 
but  that  is  not  a  warranty ;  there  is  no  warranty  that  he  should  sell 
him  peas ;  the  contract  is  to  sell  peas,  and  if  he  sends  him  anything 
else  in  their  stead,  it  is  a  non-performance  of  it." 


SF.CT.  Ill]  REGINA   V.    MIDDLETON.  621 

We  admit  that  the  case  is  undistingiiishahle  from  the  one  supposed 
in  the  argument,  of  a  person  handing  to  a  cabman  a  sovereign  h\  mis- 
take for  a  shilling;  but  after  carefully  weighing  the  opinions  to  the 
contrary,  we  are  decidedly  of  opinion  tiiut  the  property  in  the  sovereign 
would  not  vest  in  the  cahniun,  and  th;it  the  question  whether  the  cab- 
man  was  guilty  of  larceny  or  not,  would  depend  \\\w\\  tliis,  whether  he, 
at  the  time  he  took  the  sovereign,  was  aware  of  the  mistake  and  had 
then  the  guilty  intent,  the  anirmis  furandi. 

But  it  is  further  urged  that  if  the  owner,  having  power  to  dii^pose 
of  the  property,  intended  to  part  with  it,  that  prevents  the  crime 
from  being  that  of  larceny,  though  the  intention  was  inoperative,  and 
no  property  passed.  In  almost  all  the  cases  on  the  subject,  the  property 
had  actually  passed,  or  at  least  the  court  thought  it  had  passed  ;  but 
two  cases.  Rex  v.  Adams,  2  Russell  on  Crimes,  4th  ed.  at  p.  200,  and 
Rex  V.  Atkinson,  2  East  P.  C.  G73,  appear  to  have  been  decided  on 
the  ground  that  an  intention  to  pass  the  property,  though  inoperative, 
and  known  by  the  prisoner  to  be  inoperative,  was  enough  to  prevent 
the  crime  from  being  that  of  larceny.  But  we  are  unable  to  perceive 
or  understand  on  what  principles  the  cases  can  be  supported  if  Rex  r. 
Davenport,  2  Russell  on  Crimes,  4th  ed.  at  p.  201,  and  the  others  in- 
volving the  same  principle  are  law  ;  and  though  if  a  long  series  of  cases 
had  so  decided,  we  should  think  we  were  bound  by  them,  yet  we  think 
that  in  a  court  such  as  this,  which  is  in  effect  a  court  of  error,  we 
ought  not  to  feel  bound  by  two  cases  which,  as  far  as  we  can  perceive, 
stand  alone,  and  seem  to  us  contrary  both  to  principle  and  justice. 

BoviLL,  C.  J.,  delivered  the  judgment  of  himself  and  Keating,  J.,  as 
follows :  — 

The  proper  definition  of  larceny  according  to  the  law  of  England, 
from  the  time  of  Bracton  downwards,  has  been  considered  to  be  the 
wrongful  or  fraudulent  taking  and  carrying  away  by  any  person  of  the 
personal  goods  of  another,  from  any  place,  without  any  color  of  right, 
with  a  felonious  intent  to  convert  them  to  the  taker's  own  use,  and 
make  them  his  own  property,  without  the  consent  and  against  the  will 
of  the  owner.  And  the  question  for  our  consideration  is,  whether  the 
facts  of  the  present  case  bring  it  within  that  definition. 

Under  the  act  for  establishing  post-office  savings-banks,  24  &  25 
Vict.  c.  14,  deposits  are  received  at  the  post-offices  authorized  by  virtue 
of  that  act,  for  the  purpose  of  being  remitted  to  the  principal  office 
(§  1).  By  §  2  the  Postmaster-General  is  to  give  an  acknowledgment 
of  such  deposits,  and  by  the  5th  section  all  moneys  so  deposited  with 
the  Postmaster-General  are  forthwith  to  be  paid  over  to  the  Commis- 
sioners for  the  Reduction  of  the  National  Debt  By  the  same  section 
all  sums  withdrawn  by  depositors  are  to  be  repaid  out  of  those  moneys 
through  the  office  of  the  Postmaster-General.  By  §  3  the  autliority  of 
the  Postmaster-General  for  such  repayment  shall  be  transmitted  to  the 
depositor,  who  is  to  be  entitled  to  repayment  at  a  post-office  within  ten 
days. 


622  EEGINA    V.    MIDDLETON.  [CITA?.  XITT. 

It  appears  to  us  that. the  moneA's  received  by  the  postmasters  at 
their  respective  offices,  b3'  virtue  of  this  act,  are  the  property  of  the 
Crown  or  of  the  Postmaster-General,  and  that  neither  the  postmasters, 
nor  the  clerks  at  the  post-offices,  have  any  power  or  authority  either 
general  or  special,  to  part  with  the  property  in,  or  even  the  possession 
of,  the  moneys  so  deposited,  or  an}'  part  of  tliem,  to  any  person  except 
upon  the  special  authority  of  the  Postmaster-General. 

In  this  case  the  prisoner  had  received  a  warrant  or  authorit}'  from 
the  Postmaster-General,  entitling  him  to  repayment  of  10s.  (being  part 
of  a  sum  of  U.S.  which  he  had  deposited)  from  the  post-office  at  Net- 
ting Hill,  and  a  letter  of  advice  to  the  same  effect  was  sent  by  the 
Postmaster-General  to  that  post-office,  authorizing  the  payment  of  the 
10s.  to  the  prisoner. 

Under  these  circumstances  we  are  of  opinion  that  neither  the  clerk 
to  the  postmistress,  nor  the  postmistress  personall}-,  had  any  power  or 
authority  to  part  with  the  £5  note,  three  sovereigns,  the  half-sovereign, 
and  silver  and  copper,  amounting  to  £8  16s.  lOf?.,  which  the  clerk 
placed  upon  the  counter,  and  which  was  taken  up  b}'  the  prisoner. 

In  this  view  the  present  case  appears  to  be  undistinguishable  from 
other  cases  where  obtaining  articles  animo  furandi  from  the  master  of 
a  post-office,  though  he  had  intentionally  delivered  them  over  to  the 
prisoner,  has  been  held  to  be  larceny,  on  the  principle  that  the  post- 
master had  not  the  propert}'  in  the  articles,  or  the  power  to  part  with 
the  property  in  them.  For  instance,  the  obtaining  the  mail  bags  by 
pretending  to  be  the  mail  guard,  as  in  Rex  v.  Pearce,  2  East  P.  C. 
p.  603  ;  the  obtaining  a  watch  from  the  postmaster  by  pretending  to  be 
the  person  for  whom  it  was  intended,  as  in  Reg.  v.  Kay,  Dears.  &  B. 
Cr.  C.  231  ;  26  L.  J.  (M.  C.)  119  (where  Rex  v.  Pearce,  2  East  P.  C. 
p.  603,  was  relied  upon  in  the  judgment  of  the  court) ;  and  the  obtain- 
ing letters  from  the  postmaster  under  pretence  of  being  the  servant  of 
the  party  to  whom  they  were  addressed,  as  in  Reg.  v.  Jones,  1  Den. 
Cr.  C.  188,  and  in  Reg.  v.  Gillings,  1  F.  &  F.  36,  were  all  held  to  be 
larceny. 

The  same  principle  has  been  acted  upon  in  other  cases,  where  the 
person  having  merely  the  possession  of  goods,  without  any  power  to 
part  with  the  property  in  them,  has  delivered  them  to  the  prisoner, 
who  has  obtained  them  animo  furandi  ;  for  instance,  such  obtaining  of 
a  parcel  from  a  carrier's  servant  by  pretending  to  be  the  person  to 
whom  it  was  directed,  as  in  Rex  v.  Longstreeth,  1  Mood.  Cr.  C.  137; 
or  obtaining  goods  through  the  misdeliver}'  of  them  by  a  caiman's  ser- 
vant, through  mistake,  to  a  wrong  person,  who  appropriated  them 
animo  furandi,  as  in  Reg.  v.  Little,  10  Cox  Cr.  C.  559,  were,  in  like 
manner,  held  to  amount  to  larceny. 

In  all  these  and  other  similar  cases,  many  of  which  are  collected  in 
2  Russell  on  Crimes,  211  to  215,  the  propertj'  was  considered  to  be 
taken  without  the  consent  and  against  the  will  of  the  owner,  though  the 
possession  was  parted  with  by  the  voluntary  act  of  the  servant,  to 


SECT.  III.]  REGINA   V.    MIDDLETON.  623 

whom  the  property  had  been  intrustctl  fur  a  special  purpose.  Ami 
where  property  is  so  taken  by  the  prisoner  knowingl}-,  with  intent 
to  deprive  the  owner  of  it  and  feloniously  to  appropriuLe  it  to  himself, 
he  may,  in  our  opinion,  be  proi)tTly  convicted  of  larceny. 

The  case  is  very  ditferent  where  the  goods  are  parted  with  by  the 
owner  himself,  or  by  a  person  having  authority  to  act  for  him,  and 
where  he  or  such  agent  intends  to  part  with  the  property  in  the  goods  ; 
for  then,  although  the  goods  be  obtained  by  fraud,  or  forgery,  or  false 
pretences,  it  is  not  a  taking  against  the  will  of  the  owner,  which  is 
necessary  in  order  to  constitute  larceny. 

The  delivery  of  goods  b}'  the  owner  upon  an  order  whicii  was  in  fact 
forged,  as  in  Reg.  v.  Adams,  1  Den.  Cr.  C.  38,  the  payment  of  money 
b}'  a  banker's  cashier  on  a  check  which  turned  out  to  be  a  forgery,  as 
in  Reg.  r.  Prince,  Law  Rep.  1  C.  C.  150,  and  the  delivery  up  of  pledges 
b}'  a  pawnbroker's  manager  by  mistake  and  through  fraud,  as  in  Hex 
V.  Jackson,  1  Mood.  Cr.  C.  Hi),  arc  instances  of  this  kind,  and  wliere 
the  intent  voluntarily  to  part  with  the  property  in  the  goods,  by  a  per- 
son who  had  authority  to  part  with  the  property  in  them,  prevented  the 
offence  being  treated  as  a  larceny. 

In  the  present  case,  not  only  had  the  postmistress  or  her  clerk  no 
power  or  authorit}-  to  part  with  the  property  in  tiiis  money  to  the  pris- 
oner, but  the  clerk,  in  one  sense,  never  intended  to  part  with  the 
£8  16s.  lOd.  to  the  person  who  presented  an  order  for  only  IO5.,  and 
he  placed  the  money  on  the  counter  by  mistake,  though  at  the  time  he 
(by  mistake)  intended  that  the  prisoner  should  take  it  up,  and  by  mis- 
take entered  the  amount  in  the  prisoner's  book.  When  the  money  was 
lying  upon  the  counter  the  prisoner  was  aware  that  he  was  not  entitled 
to  it,  and  that  it  could  not  be,  and  was  not,  realh-  intended  for  him  ; 
yet,  with  a  full  knowledge  on  his  part  of  the  mistake,  he  took  the 
money  up  and  carried  it  away,  intending  at  the  time  he  took  it  to 
deprive  the  owner  of  all  property  in  it,  and  feloniously  to  appropriate  it 
to  his  own  use. 

There  was,  therefore,  as  it  seems  to  us,  a  wrongful  and  fraudulent 
taking  and  carrying  away  of  the  whole  of  this  money  by  the  prisoner, 
without  any  color  of  right,  animo  /urandi,  and  against  the  will  of  the 
real  owner;  and  for  these  reasons,  and  upon  the  authorities  before 
stated,  we  think  the  prisoner  was  properly  convicted  of  larceny.' 

PiGOTT,  B.  I  agree  in  the  judgment  of  the  majority  of  the  court, 
except  that  I  do  not  adopt  the  reasons  which  are  there  assigned  for 
holding  that  the  mistaken  intention  of  the  clerk  did  not,  under  the  cir- 
cumstances here,  prevent  the  case  from  being  one  of  larceny  on  the 
part  of  the  prisoner.  I  quite  accede  to  that  proposition,  but  my  rea- 
son is  that,  in  the  view  I  take  of  the  facts,  the  intention  and  acts  of  the 
clerk  are  not  material  in  determining  the  nature  of  the  prisoner's  act 
and  intent,  because  the  transaction  between  them  stopped  short  of 

1  Kelly,  C  B.,  delivered  an  opinion  concurring  with  that  of  Bovn.L,  C  J. 


624  KEGINA   V.   MIDDLETON.  [CHAP.  XIII. 

placing  the  mone}-  completely  in  the  prisoner's  possession,  and  could  in 
uo  wa}'  have  misled  the  prisoner. 

Tile  case  states  that  the  clerk  placed  the  money  on  the  counter.  He 
then  entered  the  amount  of  it  in  the  prisoner's  book  and  stamped  it. 
This,  no  doubt,  gave  the  prisoner  the  opportunity  of  taking  up  the 
money,  and  he  did  so  in  the  presence  of  the  clerk  ;  but  before  doing  so 
he  must  have  seen  by  the  amount  that  the  clerk  was  in  error,  and  that 
the  money  could  not  really  be  intended  in  payment  of  his  order,  and 
therefore  was  not  for  him,  but  for  another  person.  It  was  with  full 
knowledge  of  this  mistake  that  he  resolved  to  avail  himself  of  it,  and  in 
fact  to  steal  the  money.  The  interval  afforded  him  the  opportunity  of 
conceiving,  and  he  did  in  fact  conceive,  the  animus  furatuli,  while  as 
yet  he  had  not  got  the  money  in  his  manual  possession. 

The  dividing  line  may  appear  to  be  a  fine  one,  but  it  is,  I  think,  very 
distinct  and  well  defined  in  fact,  for  it  was  with  this  formed  intention 
in  his  mind  that  he  took  possession  of  the  money.  If  complete  posses- 
sion had  been  given  by  the  clerk  to  the  prisoner,  so  that  no  act  of  the 
latter  was  required  to  complete  it  after  his  discovery  of  the  mistake  and 
his  own  formed  intention  to  steal  it,  I  should  not  feel  myself  at  libei-ty 
to  affirm  this  conviction.  In  that  case  the  prisoner  would  have  done 
nothing  to  defraud  the  clerk,  and  the  latter,  intending  (to  the  extent  to 
which  he  had  such  intention)  as  much  to  pass  the  property  as  the 
possession  in  the  money,  there  would  be  nothing  to  deprive  the  matter 
of  the  character  of  a  business  transaction  fully  completed. 

I  desire  to  adhere  to  the  law  as  stated  in  the  3d  Institute,  page  110  : 
"  The  intent  to  steal  must  be  before  it  cometh  to  his  hands  or  posses- 
sion, for  if  he  hath  the  possession  of  it  once  lawfully,  though  he  hath 
animus  furandi  afterwards  and  carrieth  it  awaj',  it  is  no  larcen}-." 
But  the  facts  satisfy  me,  and  the  jur}'  have  found  upon  them,  that  the 
prisoner  had  the  animus  furandi  while  the  mone}'  was  yet  on  the 
counter,  and  that  at  the  moment  of  taking  it  up  he  knew  the  money  to 
be  the  Postmaster-General's.  The  case  is  therefore  ver}-  much  like  that 
of  a  finder  who,  immediately  on  finding  it,  knows,  or  has  the  means  of 
knowing,  the  owner,  j-et  determines  to  steal  it.  2  Russell  on  Crimes, 
4th  ed.  p.  169.  The  same  facts  satisfj'  the  requirements  in  the  defi- 
nition of  larceny,  that  the  taking  must  be  invito  domino.  The  loser 
does  not  intend  to  be  robbed  of  his  property,  nor  did  the  clerk  in  this 
case,  and  the  prisoner's  conduct  is  unaffected  by  the  clerk's  apparent 
consent  in  ignorance  of  its  real  nature.     I  affirm  the  conviction. 

Bramwell,  B.  As  the  prisoner  has  now  undergone  his  nominal 
sentence,  I  should  think  it  better  that  the  small  minority  in  this  case, 
of  whom  I  am  one,  should  give  up  their  opinions  to  the  majority,  if  the 
case  turned  on  its  own  particular  circumstances  and  no  principle  was 
involved.  But  in  my  opinion  great  and  important  principles  not  only  of 
our  law  but  of  general  jurisprudence  arise  here,  on  which  I  feel  bound 
to  state  my  views. 

It  rs  a  good  rule  in  criminal  jurisprudence  not  to  multiply  crimes,  to 


SECT.  III.]  V'  REGINA   V.    MIDDLETON.V  (;o- 

make  as  few  matters  as  iK)Ssible  the  subject  of  the  criininal  law,  and 
to  trust  as  much  as  can  be  to  the  operation  of  the  civil  law,  for  the  pre- 
vention and  remedy  of  wrongs.  It  is  also  a  gooil  rule  not  to  make 
that  a  crime  which  is  the  act,  or  parti}-  the  act,  of  the  part}-  complain- 
ing. Volenti  nofi  fit  injuria  :  As  far  as  he  is  willing,  let  it  be  no 
crime.  Here  the  taking  was  consented  to.  This  is  undoubtedly  a  rule 
of  the  English  common  law.  Obtaining  goods  by  false  pretences  was 
no  offence  at  common  law.  Ordinary  cheating  was  not.  Embezzle- 
ment, &c.,  by  servants  was  not  larcenous,  lireaches  of  trust  by  trus- 
tees and  bailees  were  not.  So  also  fraudulently  simulating  the  husband 
of  a  married  woman,  and  having  connection  with  her,  was  not.  And 
most  particularly  was  and  is  this  the  case  in  larceny,  for  the  deflnition 
of  it  is  that  the  taking  must  be  invito  domino. 

Whether  this  law  is  good  or  bad  is  not  the  question.  We  are  to 
administer  it  as  it  is.  I  think  those  statutes  that  have  made  offences 
of  such  matters  as  I  have  mentioned  improved  the  law,  because  the 
business  of  life  cannot  be  carried  on  without  trusting  to  representations 
that  w«  cannot  verify,  and  without  trusting  goods  to  others  in  such  a 
wa}'  that  the  owner  loses  all  power  of  watching  over  them  ;  and  it  is 
reasonable  that  the  law  should  protect  persons  who  do  so,  by  making 
criminals  of  those  who  abuse  that  confidence.  But  something  was  to 
be  said  in  favor  of  the  old  law,  viz.,  that  the  opix)rtunity  for  the  crime 
was  afforded  by  the  complainant.  Further,  there  is  certainly  a  differ- 
ence between  the  privy  taking  of  property  without  the  knowledge  of 
the  owner,  or  its  forcible  taking,  and  its  taking  with  consent  by  means 
of  a  fraud.  The  latter,  perhaps,  may  properly  be  made  a  crime  ;  but 
it  is  a  different  crime  from  the  other  taking. 

I  say,  then,  that  on  principles  of  general  jurisprudence,  on  the  gen- 
eral principles  of  our  law,  and  on  the  particular  definition  of  larceny,  the 
taking  must  be  invito  domino.  That  does  not  mean  contrary  to  or 
against  his  will,  but  without  it.  All  he  need  be  is  tnvitus.  This 
accounts  for  how  it  is  that  a  finder  of  a  chattel  may  be  guilty  of  lar- 
ceny. The  dominus  is  invitus.  So  in  the  case  of  a  servant  wiio  steals 
his  master's  property.  There  are  certain  cases  apparently  inconsistent 
with  this,  but  which  are  brought  within  the  rule  indeed,  but  by  reason- 
ing which  ought  to  have  no  place  in  criminal  law.  I  mean  such  cases 
as  where  a  carrier  broke  bulk  and  stole  the  contents  or  part,  and  was 
guilty  of  larceny,  but  would  not  have  been  had  he  taken  the  whole 
package,  and  cases  where  possession  was  fraudulently  obtained,  animo 
furandiy  from  the  owner,  who  did  not  intend  to  part  with  the  projierty. 
In  such  cases  it  has  been  held  that  the  breach  of  trust  by  the  carrier 
in  breaking  bulk  re-vested  the  possession  in  the  owner;  and  in  the 
other  case  the  obtaining  of  possession  was  a  fraud,  and  so  null ;  and 
that  therefore  in  such  cases  the  possession  reverted  to  or  remained  in 
the  true  owner,  and  so  there  was  a  taking  i7iHto  domino.  So  also 
cases  where  the  custody  is  given  to  the  alleged  thief,  but  not  pos- 
session or  propert}',  as  when  the  price  of  a  chattel  delivered  is  to  be 

40 


626  KEGINA   V.   MIDDLETON.  [CHAP.  XIII. 

paid  in  ready  money.  Reg.  v.  Cohen,  2  Den.  Cr.  C.  249.  These  are 
not  exceptions  to  tlie  rule,  but  are  brought  within  it  by  artificial,  tech- 
nical, and  unreal  reasoning.  But  where  the  dominus  has  voluntarily 
parted  with  the  possession,  intending  to  part  with  the  property-  in  the 
chattel,  it  has  never  yet  been  held  that  larceny  was  committed,  what- 
ever fraud  may  have  been  used  to  induce  him  to  do  so,  nor  whatever 
may  be  the  mistake  he  committed  ;  because  in  such  case  the  dominus  is 
not  invitus.  So  also  where  the  possession  has  been  parted  with  in  such 
way  as  to  give  the  bailee  a  special  propert}-.  See  2  Russell  on  Crimes, 
4th  ed.  p.  191,  citing  2  East  P.  C.  p.  682  ;  Reg.  v.  Smith,  2  Russell  on 
Crimes,  4th  ed.  p.  191  ;  Reg.  v.  Goodbody,  8  C.  &  P.  665.  It  is  not 
necessary  that  the  property  should  pass,  the  intent  it  should  is  enough. 
See  Rex  v.  Coleman,  2  East  P.  C.  672. 

But  it  is  argued  that  here  there  was  no  intent  to  part  with  the  prop- 
erty, because  the  post-office  clerk  never  intended  to  give  to  Middleton 
what  did  not  belong  to  him.  A  fallacy  is  involved  in  this  wa^'  of 
stating  the  matter.  No  doubt  the  clerk  did  not  intend  to  do  an  act  of 
the  sort  described  and  give  to  Middleton  what  did  not  belong  to  him, 
yet  he  intended  to  do  the  act  he  did.  What  he  did  he  did  not  do 
involuntarily  nor  accidentally,  but  on  purpose.  See  what  would  follow 
from  such  reasoning.  A.  intends  to  kill  B. ;  mistaking  C.  for  B.,  he 
shoots  at  C.  and  kills  him.  According  to  the  argument,  he  is  not 
guilty  of  intentional  murder ;  not  of  B.,  for  he  has  not  killed  him  ;  not 
of  C,  for  he  did  not  intend  to  kill  him.  There  is  authority  of  a  very 
cogent  kind  against  this  argument.  A  man  in  the  dark  gets  into  bed 
to  a  woman,  who,  erroneously  believing  him  to  be  her  husband,  lets  him 
have  connection  with  her.  This  is  no  rape,  because  it  is  not  without  her 
consent,  yet  she  did  not  intend  that  a  man  not  her  husband  should 
have  connection  with  her.  I  have  noticed  this  above  as  another  illus- 
tration of  how  the  common  law  refuses  to  punish  an  act  committed 
with  the  consent  of  the  complainant. 

To  proceed  with  the  pi-esent  matter :  If  the  reasoning  as  to  not 
intending  to  give  this  money  is  correct,  then,  as  it  is  certain  that  the 
post-office  clerk  did  not  intend  to  give  Middleton  10s.,  it  follows  that 
he  intended  to  give  him  nothing.  That  cannot  be.  In  truth,  he  in- 
tended to  give  him  what  he  gave,  because  he  made  the  mistake.  This 
matter  may  be  tested  in  this  way :  A.  tells  B.  he  has  ordered  a  wine 
merchant  to  give  B.  a  dozen  of  wine ;  B.  goes  to  the  wine  merchant, 
bona  fide  receives,  and  drinks  a  dozen  of  wine.  After  it  is  consumed 
the  wine  merchant  discovers  he  gave  B.  the  wi'ong  dozen,  and  demands 
it  of  B.,  who,  having  consumed  it,  cannot  i-eturn  it.  It  is  clear  the 
wine  merchant  can  maintain  no  action  against  B.,  as  B.  could  plead 
the  wine  merchant's  leave  and  license.  But  it  is  said  that  if  B.  knew 
of  the  mistake,  and  took  the  wine  anirno  furancli,  then  he  would  have 
taken  it  invito  domino  ;  so  that  whether  the  dominus  is  invitus  or  not 
depends,  not  on  the  state  of  his  own  mind,  but  of  that  of  B. 

It  is  impossible  to  say  that  there  was  a  taking  here  sufficient  to  con- 


SECT.  III.]  REGLNA   V.   MIDDLETON.  627 

stitute  larceny  beciiuse  the  money  was  indeed  up,  but  that  if  it  had 
been  put  in  the  prisoner's  iiuncl  tlicre  was  not  such  a  taking. 

But  for  the  point,  then,  1  am  about  to  mention,  I  submit  the  domi- 
nus  was  not  invitus,  that  he  consented  to  tlie  taking,  and  that  it  was 
partly  his  act.  No  doubt  the  prisoner  was  a  dishonest  n)an,  maybe 
what  he  did  ought  to  be  made  criminal,  but  his  act  was  dilferent  from 
a  privy  or  forcible  taking  ;  he  was  led  into  tempLaliun  ;  tlu-  i)rosccutor 
had  very  much  himself  to  blame,  and  I  certainly  think  that  Middluton, 
if  punislied,  should  be  so  on  dilferent  considerations  from  those  which 
should  govern  the  punishment  of  a  larcenous  thief. 

But  a  point  is  made  for  the  prosecution  on  which  I  confess  I  have 
had  the  greatest  doubt.  It  is  said  that  here  tlie  domiims  was  invitus  ; 
that  the  dominus  was  not  the  post-oUice  clerk,  but  the  Postmaster- 
General  or  the  Queen  ;  and  that  therefore  it  was  an  unauthorized  act 
in  the  post-oflice  clerk,  and  so  a  trespass  in  Middleton  incito  domino. 
I  think  one  answer  to  this  is,  that  the  post-office  clerk  had  authority  to 
decide  under  what  circumstances  he  would  part  with  the  mono}-  with 
which  he  was  intrusted.  But  I  also  think  that,  for  the  purposes  of 
this  question,  the  lawful  possessor  of  the  chattel,  having  authority  to 
transfer  the  property,  must  be  considered  as  the  dominus  within  this 
rule,  at  least  when  acting  bond  fide.  It  is  unreasonable  that  a  man 
should  be  a  thief  or  not,  not  according  to  his  act  and  intention,  but 
according  to  a  matter  which  has  nothing  to  do  with  them,  and  of  which 
he  has  no  knowledge. 

According  to  this,  if  I  give  a  cabman  a  sovereign  for  a  shilling  by 
mistake,  he  taking  it  animo  furandi,  it  is  no  larceny  ;  but  if  I  tell  my 
servant  to  take  a  shilling  out  of  my  purse,  and  he  b}-  mistake  takes  a 
sovereign,  and  gives  it  to  the  cabman,  who  takes  it  ajiimo  furatuli, 
the  cabman  is  a  thief.  It  is  ludicrous  to  say  that  if  a  man,  instead  of 
himself  paying,  tells  his  wife  to  do  so,  and  she  gives  the  sovereign  for 
a  shilling,  the  cabman  is  guilt}'  of  larceny,  but  not  if  the  husband  gives 
it.  It  is  said  that  there  is  no  great  harm  in  this  ;  that  a  thief  in  mind 
and  act  has  blundered  into  a  crime.  I  cannot  agree.  I  think  the 
criminal  law  ought  to  be  reasonable  and  intelligible.  Certainly  a  man 
who  had  to  be  hung  owing  to  this  distinction  miglit  well  con)plain,  and 
it  is  to  be  remembered  that  we  must  hold  that  to  be  law  now  which 
would  have  been  law  when  such  a  felony  was  capital.  Besides,  juries 
are  not  infallible,  and  may  make  a  mistake  as  to  the  animus  furandi^ 
and  so  find  a  man  guilty  of  larceny  when  there  was  no  theft  and  no 
animus  furandi.  INIoreover,  Keg.  i\  Prince,  Law  Pep.  1  C.  C.  loO,  is 
contrary  to  this  argument,  for  tlserc  the  banker's  clerks  had  no  author- 
ity to  pay  a  forged  check  if  they  knew  it ;  they  had  authority  to 
make  a  mistake,  and  so  had  the  post-office  clerk.  And  suppose  in  this 
case  the  taking  had  been  bond  fide,  —  suppose  Middleton  could  neither 
write  nor  read,  and  some  one  had  made  him  a  present  of  the  book 
without  telling  him  the  amount,  and  he  had  thought  the  right  sum  was 
given  him,  —  would  his  taking  of  it  have  been  a  trespass?     I  think 


628  REGINA  V.    MIDDLETON.  [CHAP.  XIW 

not,  and  that  a  demand  would  have  been  necessary  before  an  action 
of  conversion  could  be  maintained.^ 

Cleasby,  B.^  The  cases  establish  that,  where  there  is  a  complete 
dealing  or  transaction  between  the  parties  for  the  purpose  of  passing 
the  propert3',  and  so  the  possession  parted  with,  there  is  no  taking, 
and  the  case  is  out  of  the  category  of  larceny-. 

I  believe  the  rule  is  as  I  have  stated,  and  that  it  is  not  limited  to 
cases  in  which  the  property  in  the  chattel  actually  passes  by  virtue  of 
the  transaction.  I  have  not  seen  that  limitation  put  upon  it  in  any  text- 
book on  the  criminal  law,  and  there  are,  unless  I  am  mistaken,  many 
authorities  against  it.  The  cases  show,  no  doubt,  beyond  question  that 
where  the  transaction  is  of  such  a  nature  that  the  property  in  the  chat- 
tel actually  passes  (though  subject  to  be  resumed  by  reason  of  fraud 
or  trick),  there  is  no  taking,  and  therefore  no  larceny.  But  they  do 
not  show  the  converse,  viz.,  that  when  the  property  does  not  pass 
there  is  larceny.  On  the  contrary,  they  appear  to  me  to  show  that 
where  there  is  an  intention  to  part  with  the  property  along  with  the 
possession,  though  the  fraud  is  of  such  a  nature  as  to  prevent  that 
intention  from  operating,  there  is  still  no  larceny.  This  seems  so 
clearly  to  follow  from  the  cardinal  rule  that  there  must  be  a  taking 
against  the  will  of  the  owner,  that  the  cases  rather  assume  that  the 
intention  to  transfer  the  property  governs  the  case  than  expressly 
decide  it.  For  how  can  there  be  a  taking  against  the  will  of  the 
owner  where  the  owner  hands  over  the  possession,  intending  by  doing 
so  to  part  with  the  entire  property  ? 

As  far  as  my  own  experience  goes,  many  of  the  cases  of  fraudulent 
pretences  which  I  have  tried  have  been  eases  in  which  the  prisoner  has 
obtained  goods  from  a  tradesman  upon  the  false  pretence  that  he 
came  with  the  order  from  a  customer.  In  these  cases  no  property 
passes  either  to  the  customer  or  to  the  prisoner,  and  I  never  heard 
such  a  case  put  forward  as  a  case  of  larceny.  And  the  authorities  are 
distinct,  upon  cases  reserved  for  the  judges,  that  in  such  cases  there 
is  no  larceny.  In  Reg.  v.  Adams,  1  Den.  Cr.  C.  38,  the  prisoner  was 
indicted  for  stealing  a  quantity  of  bacon  and  hams,  and  it  appeared 
that  he  went  to  the  shop  of  one  Aston,  and  said  he  came  from  Mr. 
Parker  for  some  hams  and  bacon,  and  produced  the  following  note, 
purporting  to  be  signed  by  Parker :  — 

Have  the  goodness  to  give  the  bearer  ten  good  thick  sides  of 
bacon,  and  four  good,  showy  hams,  at  the  lowest  price.  I  shall  be  iu 
town  on  Thursday  next,  and  will  come  and  pay  you. 

Yours  respectfully,  T.  Parker. 

Aston,  believing  the  note  to  be  the  genuine  note  of  Parker  (who 
occasionally  dealt  with  him),  delivered  the  articles  to  Adams.     The 

1  The  remainder  of  the  opinion  is  omitted.  Martin  and  Cleasby,  BB.,  and 
Brett,  J.,  delivered  concurring  opinions. 

2  Part  only  of  the  opinion  is  given. 


SECT,  III  ]  WOLFSTEIN    V.    PKOPLE.  629 

jury  convicted,  but  upon  a  case  reserved,  upon  the  question  whether 
the  offence  was  larceny,  the  judges  were  all  of  opinion  that  the  con- 
viction was  wrong.  Hex  v.  Coleman,  2  East  P.  C.  p.  672,  is  to  the 
same  effect.  In  that  case  the  prisoner  got  some  silver  as  change, 
falsely  pretending  to  come  from  a  neighbor  for  it ;  and  it  was  held  not 
to  be  a  case  of  larceny.  Rex  y.  Atkinson,  2  East  P.  C.  p.  073,  was 
a  similar  one,  and  the  prisoner  was  convicted  ;  but  on  a  reference  to 
the  judges  after  conviction,  all  present  held  that  it  was  no  felony,  on 
the  ground  that  the  property  was  intended  to  pass  by  the  delivery 
of  the  owner. 

I  do  not  think  a  man  ought  to  be  exposed  to  a  charge  of  ft-Iony 
upon  a  transaction  of  this  description,  which  is  altogether  foundcil 
upon  an  unexpected  blunder  of  the  clerk.  The  prisoner  was  undoubt- 
edly at  the  otJice  for  an  honest  purpose,  and  finds  a  larger  sum  of 
money  than  he  demanded  paid  over  to  him  and  charged  against  him. 
A  man  may  order  and  pay  for  certain  goods,  and  by  mistake,  a  larger 
quantity  than  was  paid  for  may  be  put  in  the  package  and  he  may 
take  them  away.  Or  he  may  pay  in  excess  for  that  which  is  ordered 
and  delivered.  Is  the  person  receiving  to  be  put  in  the  peril  of  a  con- 
viction for  felony  in  all  such  cases,  upon  the  conclusion  which  may  be 
arrived  at  as  to  whether  he  knew,  or  had  the  means  of  knowing,  and 
had  the  animus furandi?  I  think  not;  I  think  such  cases  are  out  of 
the  area  of  felony,  and  therefore  the  animus  furandi  is  inapplicable, 
and  ought  not  to  be  left  to  the  jury.  And  any  conclusion,  founded 
upon  the  finding  of  the  jury  upon  a  question  which  ought  not  to  be 
left  to  them  must  be  erroneous,  because  the  foundation  is  naught.  I 
think  the  conviction  was  against  law  and  ought  to  be  quashed. 

Conviction  affirmed} 


WOLFSTEIN  V.   PEOPLE. 
Supreme  Court  of  New  York.     1875. 

[Reported  6  Hun,  121.] 

"Writ  of  error  to  the  Court  of  General  Sessions  for  the  city  and 
county  of  New  York,  to  review  the  conviction,  of  the  plaintiff  in  "error, 
of  the  crime  of  grand  larceny. 

Charles  W.  Brooke,  for  the  plaintiff  in  error. 

Benjatniyi  K.  Phelps,  for  the  defendants  in  error. 

Westbrook,  J.  The  plaintiff  in  error  having  been  convicted  in  the 
Court  of  General  Sessions  of  the  city  and  county  of  New  York  during 
the  month  of  April,  1875,  of  the  crime  of  grand  larceny,  has,  by  writ 
of  error,  brought  the  proceedings  into  this  court  for  review. 

1  But  see  Com.  i'.  Hays,  14  Grav,  62.  — En. 


630  WOLFSTEIN   V.   PEOPLE.  [ciIAP.  XIII. 

By  the  evidence  given  upon  the  trial  and  the  verdict  of  the  jiny,  the 
following  facts  were  established  :  The  prisoner  was  the  possessor  of  a 
draft,  dated  February  15th,  1875,  drawn  payable  to  his  order  by  one  L. 
Boell,  on  Heidelbach,  Frank,  &  Co.,  for  the  sum  of  seventy-four  dollars 
in  gold.  It  was  accepted  by  the  parties  upon  whom  it  was  drawn,  on 
the  9th  da}-  of  March,  1875,  and  made  payable  on  demand  at  the 
Gei-man  American  Bank.  On  the  da}-  of  its  acceptance  it  was  presented 
by  the  accused  at  the  bank  for  payment,  and  the  paying  teller,  who  was 
unable  to  read  the  French  language  in  which  it  was  written,  and  who 
read  the  figures  upon  the  draft  as  $742,  paid  to  the  prisoner  that  sum 
of  money  in  gold.  The  party  to  whom  the  mone}-  was  paid,  knowing 
that  he  was  entitled  to  receive  onl}-  seventy-four  dollars,  took  the  larger 
sum  (S7-i2)  thus  paid  to  him  b\-  mistake,  and,  without  disclosing  the 
error,  concealed  and  denied  the  over-payment,  and  feloniously  appro- 
priated it  to  his  own  use. 

The  case  then  presents  this  question  :  If  a  party  who  receives  from 
another  money  to  which  be  knows  he  is  not  entitled,  and  which  he 
knows  has  been  paid  to  him  by  mistake,  should  conceal  such  over- 
paj'ment  and  appropriate  the  money  to  his  own  use,  intending  thus  to 
cheat  and  defraud  the  owner  thereof,  would  he  or  not  be  guilty  of  the 
crime  of  larceny  ?  If  it  be  answered  that  he  would  not,  can  the  ele- 
ment needed  to  make  it  such,  and  which  is  absent,  be  pointed  out? 
The  money,  in  excess  of  that  which  he  is  entitled  to  I'eceive,  is  taken 
without  the  owner's  consent,  and  that  which  is  thus  taken  is  appropri- 
ated to  the  taker's  use  with  intent,  fraudulentl}*,  to  deprive  the  owner 
thereof.  These  two  elements  make  the  crime  of  theft,  and  they  are 
both  present  here. 

It  will  not  do  to  say  that  the  owner  parts  with  the  property  volun- 
taril}',  and  therefore  there  is  no  unlawful  taking.  There  ma}-  be  the 
ph\'sical  act  of  the  owner  handing  that  which  is  his  to  another,  but 
there  is  absent  the  intellectual  and  intelligent  assent  to  the  transfer, 
upon  which  the  consent  must  necessarily  depend.  Where  mone}'  or 
propert}'  is  obtained  from  the  owner  by  another  upon  some  false  pre- 
tence, for  a  temporar}-  use  only,  with  the  intent  to  feloniously  appro- 
priate it  permanently,  the  taking,  though  with  the  owner's  consent, 
is  larceny.  Wherein  do  the  cases  differ?  In  both  there  is  a  physical 
delivery  by  the  owner,  and  in  both  the  taker  knows  that  it  was  given 
for  no  such  purpose  as  he  has  in  mind,  and  yet  he,  unlawfully  and 
wickedly,  in  both  cases,  seeks  to  deprive  the  owner  thereof.  If  the  one 
case  is  larceny,  the  other  is  also. 

So,  too,  the  finder  of  property,  if  he  knows  the  owner  and  conceals 
such  finding,  and  appropriates  it  to  his  own  use,  with  intent  to  deprive 
the  owner  thereof,  is  guilty  of  larceny.  So  in  this  case,  if  the  prisoner 
found,  on  counting  the  money,  that  in  his  possession  to  which  he  knew 
he  was  not  entitled,  and  which  he  also  knew  the  owner  did  not  intend 
to  deliver  to  him,  he  was  bound  to  return  it  to  the  owner,  and  if  he  did 
not,  but  concealed  its  possession  and  sought  to  deprive  the  owner 
thereof,  the  crime  was  complete. 


SECT.  IV.]  KEX    V.    RAVEK.  fiSl 

From  the  evidence  in  this  case,  and  tlje  verdict  rendered,  we  are 
])oiind  to  assiHue  that  the  mistake  was  noticed  and  discovered  hy  the 
prisoner  at  some  time.  If  the  over-payment  was  observed  in  the  bank 
when  the  money  was  delivered,  and  the  prisoner  took  it  with  the  intent 
to  cheat  and  defraud  the  owner,  tlie  crime  was  then  complete.  If,  how- 
ever, the  error  was  not  then  noticed,  but  was  afterward,  and  the  intent 
of  felonious  appropriation  was  then  formed  and  executed,  the  legal 
guilt  of  the  {)risoner  was  at  that  time  incurred.  As  in  the  case  of  the 
finder  of  the  lost  article,  the  original  taking  may  be  lawful,  but  legal 
accountability  as  for  crime  begins  when  the  owner  is  discovered  and 
the  intent  formed  unlawfully  and  feloniously  to  deprive  him  of  the 
possession  thereof. 

The  questions  which  the  case  involves,  and  the  points  to  be  found  by 
the  jury  before  a  verdict  of  guilty  could  be  rendered,  were  properly  stated 
by  the  recorder,  and  the  finding  was  well  warranted  by  the  testimony. 

The  request  to  charge,  made  l)y  the  counsel  of  the  prisoner  at  folio 
eighty-two,  was  amended,  and  as  amended  was  charged.  There  is  no 
error  here.     The  conviction  of  the  prisoner  is  therefore  affirmed. 

Davis,  P.  J.,  and  Daniels,  J.,  concurred.' 

Conviction  affirmed. 


SECTION   IV. 

Larceny  after  Delivery. 

(a)  Larceny  by  Bailee. 

REX  V.  RAVEN. 

Newgate  Sessions.     1662. 

{Reported  KeJijng,  24.] 

Mary  Raven,  alias  Aston,  was  indicted  for  stealing  two  blankets, 
three  pair  of  sheets,  three  pillowbiers,  and  other  goods  of  William 
Cannon.  And  upon  the  evidence  it  appeared  that  she  had  hired  lodg- 
ings and  furniture  with  them  for  three  months,  and  during  that  time 
conveyed  away  the  goods  which  she  had  hired  with  her  lodgings,  and 
she  herself  ran  away  at  the  same  time.  And  it  was  agreed  by  my 
Lord  Bridgeman,  myself,  and  my  brother  "Wylde,  Recorder  of  London, 
then  present,  that  this  was  no  felonj",  because  she  had  a  special  prop- 
ert}'  in  them  by  her  contract,  and  so  tliere  could  be  no  trespass ;  ami 
there  can  be  no  felony  where  there  is  no  trespass,  as  it  was  resolved  in 
the  case  of  Holmes,  who  set  fire  on  his  own  house  in  London,  which 
was  quenched  before  it  went  further.'^ 

1  See  Com.  v.  Eichell)er£!;er,  119  Pa.  254.  — En. 

*  Ace.  Rex  V.  Meeres,  1  Show.  50.     But  see  Kelyng,  81.  —  Ed. 


632  REX  V.  BANKS.  [chap,  xiil 


LEIGH'S   CASE. 
Crown  Case  Reserved.     1800. 

[Reported  2  East  P.  C.  694.] 

Elizabeth  Leigh  was  indicted  at  Wells  assizes,  in  the  summer  of 
1800,  for  stealing  various  articles,  the  property-  of  Abraham  Dj-er.  It 
appeared  that  the  prosecutor's  house,  consisting  of  a  shop  containing 
muslin  and  other  ai'ticles  mentioned  in  the  indictment,  was  on  fire ;  and 
that  his  neighbors  had  in  general  assisted  at  the  time  in  removing  his 
goods  and  stock  for  their  security.  The  prisoner  probably  had  removed 
all  the  articles  which  she  was  charged  with  having  stolen  when  the 
prosecutor's  other  neighbors  were  thus  employed.  And  it  appeared 
that  she  removed  some  of  the  muslin  in  the  presence  of  the  prosecutor 
and  under  his  observation,  though  not  by  his  desire.  Upon  the  prose- 
cutor's applying  to  her  next  morning,  she  denied  that  she  had  any  of 
the  things  belonging  to  him  ;  whereupon  he  obtained  a  search  warrant, 
and  found  his  property  in  her  house,  most  of  the  articles  artfully  con- 
cealed in  various  waj's.  The  jury  found  her  guilty ;  but  it  was  sug- 
gested that  she  originally  took  the  articles  with  an  honest  purpose,  as 
her  neighbors  had  done,  and  that  she  would  not  otherwise  have  taken 
some  of  them  in  the  presence  and  under  the  view  of  the  prosecutor ; 
and  that  therefore  the  case  did  not  amount  to  felony.  The  jury  were 
instructed  that  whether  she  took  them  originallj-  with  an  honest 
intent  was  a  question  of  fact  for  their  consideration  ;  that  it  did  not 
necessarily  follow  from  the  circumstances  mentioned  that  she  took 
them  with  an  honest  intent.  But  even  if  they  were  of  that  opinion, 
yet  that  her  afterwards  hiding  the  goods  in  the  various  ways  proved, 
and  denying  that  she  had  them,  in  order  to  convert  them  to  her  owa 
use,  would  still  support  the  indictment.  The  jury  found  her  guilty ; 
but  said  that,  in  their  opinion,  when  she  first  took  the  goods  from  the 
shop  she  had  no  evil  intention,  but  that  such  evil  intention  came  upon 
her  afterwards.  And  upon  reference  to  the  judges,  in  Michaelmas 
Term,  1800,  all  (absent,  Lawrence,  J.)  held  the  conviction  wrong  ;  for  if 
the  original  taking  were  not  with  intent  to  steal,  the  subsequent  con- 
version was  no  felony,  but  a  breach  of  trust.^ 


REX  V.  BANKS. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  ^  Ryan,  441.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley,  at 
the  Lancaster  Lent  Assizes,  in  the  year  1812,  for  horse-stealing. 

1  Ace.  Reg.  V.  Reeves,  5  Jur.  N.  S.  716.  — Ed. 


SECT.  IV.]  REGINA   V.   TURISTLE.  633 

It  appeared  that  the  prisoner  borrowed  a  horse,  under  pretence  of 
carrying  a  child  to  a  neighboring  snrgt-on.  Whether  he  carried  the 
child  thither  did  not  appear ;  but  the  day  following,  after  the  purpose 
for  which  he  borrowed  the  horse  was  over,  he  took  the  horse  in  a 
different  direction  and  sold  it. 

The  prisoner  did  not  offer  the  horse  for  sale,  but  was  applied  to  to 
sell  it,  so  that  it  was  possible  he  might  have  had  no  felonious  intention 
till  that  api)lication  was  made. 

The  jury  thought  the  prisoner  had  no  felonious  intention  when  he 
took  the  horse ;  but  as  it  was  borrowed  for  a  .special  purpose,  and  that 
purpose  was  over  when  the  prisoner  took  the  horse  to  the  place  where 
he  sold  it,  the  learned  judge  thought  it  right  upon  the  authority  of 
2  East  P.  C.  GOO,  G9-1,  and  2  Russ.  1081),  10U0,»  to  submit  to  the  con- 
sideration of  the  judges  whether  the  subsequent  disposing  of  the  horse, 
when  the  purpose  for  which  it  was  borrowed  was  no  longer  in  view,  did 
not  in  law  include  in  it  a  felonious  taking. 

In  Easter  Term,  1821,  the  judges  met  and  considered  this  case. 
They  were  of  opinion  that  the  doctrine  laid  down  on  this  subject  in 
2  East  P.  C.  690  &  694,  and  2  Russell  1089  &  1090,  was  not  correct. 
They  held  that  if  the  prisoner  had  not  a  felonious  intention  when  he 
originally  took  the  horse,  his  subsequent  withholding  and  disposing  of 
it  did  not  constitute  a  new  felonious  taking,  or  make  him  guilty  of 
felony ;  consequently  the  conviction  could  not  be  supported. 


REGINA  V.  THRISTLE. 

Crown  Case  Reserved.     1849. 

[Reported  3  Cox  C.  C.  573.] 

The  two  following  cases  were  reserved  by  the  Worcestershire  Court 
of  Quarter  Sessions  :  — 

first  case. 

The  prisoner,  William  Thristle,  was  indicted  at  the  Worcester  Quar- 
ter Sessions,  15th  October,  1849,  for  stealing  one  watch,  the  property 
of  Robert  Warren. 

It  appeared  in  evidence  that  the  prosecutor,  in  1848,  met  the  pris- 
oner, who  was  a  watchmaker  at  Malvern.  The  prosecutor  asked  pris- 
oner if  he  was  going  as  far  as  prosecutor's  house ;  the  prisoner  said 

1  In  2  Russ.  1089,  it  i.s  said  that,  "  In  the  ca.se  of  a  delivery  of  a  hor^e  upon  hire  or 
loan,  if  such  delivery  were  obtained  bond  fide,  no  subsequent  wnmj^fiil  conversion 
pending  the  contract  will  amount  to  felony ;  and  so  of  other  goods.  But  when  tho 
purpose  of  the  hiring  or  loan  for  which  the  delivery  was  made  has  been  ended, 
felony  may  be  committed  by  a  conversion  of  the  goods."  —  Bkt. 


C34  KEGINA   V.   THRISTLE.  [CHAP.  XIII. 

"3'es,"  if  the  prosecutor  had  an3'thing  for  him.  The  prosecutor  said 
his  watch  wanted  regulating,  if  prisoner  would  call. 

The  prisoner  went  to  the  prosecutor's  house,  and  after  examining 
the  watch,  told  the  prosecutor's  wife  that  he  could  do  nothing  with  it 
there,  but  must  take  it  to  his  own  house.  The  prisoner  then  took  it 
and  on  his  way  home  met  the  prosecutor,  to  whom  he  mentioned  that 
he  was  taking  the  watch  to  his  own  house  and  would  return  it  in  two 
or  three  days.     Prosecutor  made  no  objection. 

In  a  few  weeks  after,  prisoner  left  the  neighborhood  without  returning 
prosecutor's  watch,  and  it  was  not  afterwards  heard  of.  The  prisoner, 
on  being  taken  into  custody,  said,  "  I  have  disposed  of  the  property, 
and  it  is  impossible  to  get  it  back." 

The  jury  returned  a  verdict  of  guilty,  but  the  chairman  being  of 
opinion  that  there  was  no  evidence  of  a  felonious  taking  when  the 
prisoner  first  took  the  watch  from  the  prosecutor's  house,  with  the 
knowledge  and  in  the  presence  of  the  prosecutor's  wife,  and  entertain- 
ing doubt  whether  the  prisoner's  subsequent  appropriation  of  the  watch 
could  under  the  circumstances  above  detailed,  constitute  larceny,  re- 
quests the  opinion  of  this  court  as  to  the  correctness  of  the  conviction 
in  point  of  law. 

SECOND    CASE. 

The  same  prisoner  was  also  indicted  at  the  same  Sessions  for  steal- 
ing one  watch,  the  property  of  the  prosecutor,  Thomas  Reynolds.  It 
appeared  in  evidence  that  the  prisoner,  who  was  a  watchmaker  at  Mal- 
vern, received  from  the  prosecutor  some  time  in  January,  1848,  his 
silver  watch  to  repair.  The  prisoner  returned  it  to  the  prosecutor.  A 
few  days  after  the  prisoner  had  so  returned  it  the  prosecutor  told  the 
prisoner  that  the  watch  gained.  The  prisoner  said  that  if  the  prose- 
cutor would  let  him  have  it  again,  he  would  regulate  it  and  return  it 
in  a  day  or  two.  The  prosecutor  thereupon  gave  the  watch  to  the 
prisoner,  who  in  eight  or  nine  days  left  Malvern  with  the  prosecutor's 
watch  in  his  possession,  and  was  not  again  heard  of  until  he  was 
arrested  on  the  present  charge  some  time  afterwards. 

The  prosecutor  was  unable  to  sa}'  whether  he  had  paid  for  the  repairs 
of  his  watch  or  not,  but  stated  that  the  prisoner,  when  he  left  Malvern, 
had  other  repairs  of  the  prosecutor's  on  hand  and  unfinished. 

The  prisoner,  when  taken  into  custody,  said,  "I  have  disposed  of 
the  property,  and  it  is  impossible  to  get  it  back." 

The  jury  found  a  verdict  of  guilty,  but  the  chairman  being  of  opinion 
that  there  was  no  evidence  of  a  felonious  taking  on  the  part  of  the 
prisoner  when  he  received  the  watch  from  the  prosecutor  to  regulate 
it,  and  entertaining  a  doubt  whether  the  subsequent  departure  of  the 
prisoner  from  Malvern  with  the  prosecutor's  watch  in  his  possession 
could  under  the  circumstances  above  detailed,  constitute  larceny,  re- 
quests the  opinion  of  this  court,  as  in  the  former  case.^ 

^  The  statement  of  authorities  in  point  is  omitted. 


SECT.  IV.]  REGINA   V.    PRATT.  635 

These  cases  were  not  argued  by  counsel  but  were  considered  by  the 
following  judges  :  Pollock,  C.  V,.,  kntteson,  J.,  Wiglitiuaii,  J.,  Piatt,  li., 
and  Talfourd,  J. 

Pollock,  C.  B.,  delivered  the  judgment  of  the  court.  The  indict- 
ment was  for  stealing  a  watch,  and  the  circumstances  set  out  in  the 
case  do  not,  on  the  question  of  fact,  justify  the  verdict  of  guilty  ;  but 
in  giving  our  judgment  that  the  conviction  is  wrong,  we  do  not  proceed 
merely  upon  tlie  facts  stated.  The  question  put  to  us  in  tlie  conclusion 
of  the  case  seems  to  be  this  :  The  chairman  doul)ted  whether  a  subse- 
qnent  appropriation  could  make  the  entire  transaction  a  larceny,  there 
not  having  been  at  the  time  of  the  taking  any  animus  furaiuU ;  and 
I  think  we  are  l)Ound  to  take  it  that  he  directed  the  jury  that  the 
subsequent  appropriation  miglit  render  the  transaction  larceny,  though 
there  was  not  any  intention  to  steal  at  the  time  of  the  taking ;  and  in- 
deed, the  chairman's  opinion  seems  to  have  been  that  there  was  not 
the  animus furajicU  at  the  time  of  the  taking;  and  the  question  is, 
whether  he  was  right  in  his  direction.  We  think  not,  for  unless  there 
■was  a  taking  animo  fiirancli,  no  dishonest  appropriation  afterwards 
could  make  it  larceny.  Conviction  reversed} 


REGINA   V.  PRATT. 
Crown  Case  Reserved.     1854. 

[Reported  6  Cox  C.  C.  373.] 

The  prisoner  was  tried  at  the  last  January  Sessions  for  the  borough 
of  Birmingham,  upon  a  charge  of  having  feloniously  stolen,  taken,  and 
carried  awa}'  on  the  18th  Maj',  in  the  16th  3'ear  of  our  Sovereign  Lady 
the  Queen,  one  die  lathe,  the  goods  of  P^dward  Barker  and  another ; 
and  on  the  19th  Ma}',  in  the  same  year,  ten  lathes,  the  property  of  the 
said  Edward  Barker  and  another,  the  goods  and  chattels  of  the  prose- 
cutors ;  and  was  found  guilt}'. 

The  prisoner  was  a  thimble-maker  and  manufacturer,  carrying  on  his 
business  in  two  mills,  one  a  thimble-mill  and  the  other  a  rolling-mill, 
in  the  borough  of  Birmingham  ;  and  before  the  occurrence  hereinafter 
mentioned  he  was  the  owner  and  proprietor  of  the  property  mentioned 
in  tiie  indictment. 

On  the  14th  of  May,  1853,  the  prisoner,  being  in  pecuniary  difficul- 
ties, arranged  with  the  prosecutors,  Edward  Barker  and  William  Wayte, 
creditors  of  the  prisoner,  and  with  Mr.  Collis,  an  attorney-at-law  who 
acted  on  their  behalf,  to  execute  an  assignment  to  trustees  for  the 

1  Ace.  Rep;,  v.  Reynolds,  2  Cox  C.  C.  170;  Reg.  v.  Uey,  3  Cox  C.  C.  583  (overrnliin» 
Reg  V.  McNamee,  1  Moo.  C.  C.  368,  and  Reg.  r.  Jackson.  2  Moo.  C.  C  32) ;  Stato  r. 
England,  8  Jones,  399;  Hill  v.  State,  57  Wis.  377.  See  Murphy  v.  People,  104  III 
528,  and  ca.se.''  cited  (statutory).  —  Ed. 


636  KEGINA   V.    PKATT.  [CHAP.  XIIL 

benefit  of  his  creditors ;  and  on  the  18th  of  Ma}'  a  deed  of  assignment 
was  executed  by  him,  whereb}'  the  prisoner  assigned  to  the  prosecutors, 
as  trustees  for  the  purposes  therein  mentioned,  certain  property  by  the 
description  following:  "  all  and  every  the  engines,  lathes,  boilers,  fur- 
naces, horses,  carts,  machinery,  tools,  and  implements  of  trade,  the 
stock-in-trade,  goods,  wares,  merchandise,  household  furniture,  fixtures, 
plate,  linen,  china,  books  of  account,  debts,  sum  and  sums  of  mone}', 
and  all  securities  for  money,  vouchers,  and  other  documents  and  writ- 
ings, and  all  other  the  personal  estate  and  effects  whatsoever  and 
wheresoever,  save  and  except  leasehold  estates  of  the  said  David  Pratt, 
in  possession,  reversion,  remainder,  or  expectanc}',  together  with  full 
and  free  possession,  right  and  title  of  entry  in  and  to  all  and  every  of 
the  mills,  works,  messuages,  or  tenements  and  premises  wherein  the 
said  several  effects  and  premises  then  were :  to  have  and  to  hold  the 
said  engines,  and  other  the  premises,  unto  the  said  William  Barker 
and  William  Wayte,  their  executors,  administrators,  and  assigns, 
absolutely." 

The  deed  was  executed  by  the  prisoner  in  the  presence  of,  and  was 
attested  b}-  James  Rous,  who  was  a  clerk  of  Mr.  Collis,  and  who  was 
not  an  attorney'  or  solicitor. 

On  the  29th  of  May  the  said  deed  was  again  executed  bj"  the  prisoner 
in  the  presence  of  the  said  Mr.  Collis  and  in  all  respects  in  conformity 
with  the  provisions  of  the  68th  section  of  the  Bankrupt  Law  Consolida- 
tion Act,  1849,  with  the  view  of  preventing  the  deed  from  operating  as 
an  act  of  bankruptcy.  The  deed  had  been  duly  stamped  on  its  first 
execution,  but  no  second  stamp  was  affixed  on  its  second  execution, 
which  omission  was  made  the  ground  of  objection  to  its  receipt  in  evi- 
dence. I  admitted  it,  however,  subject  to  the  opinion  of  this  honorable 
court,  which  I  directed  should  be  taken  if  it  became  necessar3\  At  the 
time  of  the  first  interview  with  Mr.  Collis  on  the  14th  May,  the  pris- 
oner said  he  had  stopped  work  altogether,  but  on  the  16th  it  was 
arranged  between  him  and  Mr.  Collis  that  the  rolling  business  should 
be  allowed  to  go  on  to  complete  some  unfinished  work.  Mr.  Collis 
then  told  him  to  keep  an  account  of  the  wages  of  the  men  employed  on 
the  rolling  work  and  to  bring  it  to  the  trustees.  This  the  prisoner  did, 
on  the  19th  May,  when  the  wages  were  paid  bj'  the  trustees  and  the 
rolling  business  finally  stopped. 

In  the  nights  of  Monday,  the  16th  May,  and  of  every  other  day 
during  that  week,  the  prisoner  removed  property  conveyed  by  the  deed 
—  including  the  articles  mentioned  in  the  indictment  —  from  the  thimble 
and  rolling  mills  (some  of  the  heavier  machines  being  taken  to  pieces 
for  the  purpose  of  removal),  and  hid  them  in  the  cellar  and  other  parts 
of  the  house  of  one  of  his  workmen.  Some  time  afterwards,  and  after 
the  sale  by  the  trustees  of  the  remainder  of  the  property,  a  Mr.  Walker, 
who  had  been  a  large  purchaser  at  the  sale,  recommenced  the  business 
at  the  thimble  and  rolling  mills,  and  the  prisoner  acted  as  his  manager, 
when  the  property  which  formed  the  subject  of  the  indictment  was  by 
the  prisoner's  directions  brought  back  at  intervals  to  the  mills. 


SECT.  IV.]  REGINA    V.   PRATT.  637 

No  manual  possession  of  the  property  was  taken  by  the  prosecutors 
prior  to  its  removal  from  and  l)ack  to  the  milLs,  but'  the  prisoner  re- 
mained in  possession  after  the  execution  of  the  deed,  in  the  same 
manner  as  before. 

I  asked  the  jury  three  questions  :  1st.  Did  the  prisoner  remove  the 
property  after  the  execution  of  the  deed  of  assignment?  2dly.  Did 
he  so  act  with  intent  fraudulently  to  deprive  the  parties  beneficially 
entitled  under  the  deed  of  the  goods?  :{dly.  AVas  he  at  the  time  of 
such  removal  in  the  care  of  and  custody  of  such  goods  as  the  agent  of 
the  trustees  under  the  deed? 

I  put  these  three  questions  to  the  jury  separately,  and  they  .separately 
answered  them  as  follows  :  1st.  He  did  remove  the  property  after  the 
execution  of  the  assignment.  2dly,  He  did  so  remove  it  with  fraudu- 
lent intent.  And,  lastly,  he  was  not  in  the  care  and  custody  of  the 
goods  as  the  agent  of  the  trustees.  And  thereupon  (being  of  opinion 
that  the  two  affirmative  answers  would  support  a  conviction,  notwith- 
standing the  third  answer  in  the  negative),  I  directed  the  jury  to  Gnd 
the  prisoner  guilty,  which  they  did. 

The  questions  for  the  opinion  of  the  court  are:  1st.  Whether  the 
deed  of  assignment  ought  to  have  been  received  in  evidence.  2d. 
Whether  my  direction  to  the  jury  was  correct.  And,  lastly,  whether 
the  conviction  is  valid. 

Bittleston  {Field  with  him),  for  the  prisoner.  Tiie  conviction  is 
•wrong.  1st.  The  prisoner  was  in  lawful  possession  of  the  goods,  and 
a  taking  by  him  did  not  constitute  larceny.  Furtum  non  est  ubi 
initium  habet  detentiotiis  per  dominum  ret.  The  trustees  had  not 
even  a  constructive  possession  for  this  purpose,  though  they  probably 
had  for  the  purpose  of  maintaining  a  civil  action  of  trespass  against 
a  third  person.  The  doctrine  of  constructive  possession  underwent 
consideration  in  R.  v.  Reed,  23  L.  J.  25,  M.  C,  where  a  servant  was 
sent  to  fetch  coals  ;  and  it  was  held  that  the  servant's  possession  was 
only  determined  when  he  had  placed  the  coals  in  his  master's  cart, 
which  was  the  same  thing  for  that  purpose  as  the  master's  warehouse. 
If  this  case  is  put  upon  the  ground  that  the  prisoner  was  a  bailee  and 
broke  bulk  the  jury  have  negatived  a  bailment.  2d.  Under  the  68th 
section  of  the  Bankrupt  Act,  the  re-execution  constituted  a  material 
alteration  of  the  deed,  which  therefore  required  to  be  restamped.  [Lori> 
Campbell,  C.  J.  —  Was  not  the  re-execution  a  mere  nullity  ?]  Probably 
that  is  so. 

A.  Wills,  contra.  This  is  a  case  of  bailment.  The  trustees  per- 
mitted the  prisoner  to  continue  in  possession,  and  b}'  so  doing  consti- 
tuted him  a  bailee.  [Loun  C.^mi'Bkll,  C.  J.  —  The  jurv  have  found  the 
contrary.]  The}'  have  only  found  that  he  was  not  their  agent ;  and 
there  is  a  distinction  between  an  agent  and  a  bailee. 

Lord  Campbell,  C.  J.  It  is  found  that  he  had  not  the  care  or  cus- 
tody of  the  goods  as  their  agent ;  and  that  clearly  negatives  a  bailment ; 
and  that  is  the  only  ground  upon  which  this  case  could  be  put.     The 


633  carrier's  case.  [chap,  xiii 

prisoner,  therefore,  was  in  lawful  possession  of  the  goods  and  cannot 
be  convicted  of  larceny. 

Aldeuson,  B.     This  is  a  case  of  a  man  stealing  goods  out  of  his 
own  possession.  Conviction  quashed. 


«■ 

/ 


SECTION   IV.  {continued). 

^^ 

sJ^*^  (6)  Lakceny  by  Breaking  Bulk,  &c. 

>-  CARRIER'S   CASE. 

-^  Star  Chamber  and  Exchequer  Chamber.     1473. 

[Reported  Year  Book,  13  Ed.  IV.,  9, pi  5].  i 

In  the  Star  Chamber  before  the  King's  Council  such  matter  was 
shown  and  debated :  where  one  has  bargained  with  another  to  carry 
certain  bales  with,  etc.,  and  other  things  to  Southampton,  he  took  them 
and  carried  them  to  another  place  and  broke  up  (debrusa)  the  bales 
and  took  the  goods  contained  therein  feloniously,  and  converted  them 
to  his  proper  use,  and  disposed  of  them  suspiciously ;  if  that  ma}'  be 
called  felony  or  not,  that  was  the  case. 

Brian,  C.  J.  I  think  not,  for  where  he  has  the  possession  from  the 
party  by  a  bailing  and  delivery  lawfull}-,  it  cannot  after  be  called  felony 
nor  trespass,  for  no  felony  can  be  but  with  violence  and  vi  et  armis^ 
and  what  he  himself  has  he  cannot  take  with  vi  et  armis  nor  against  the 
peace  ;  therefore  it  cannot  be  felony  nor  trespass,  for  he  may  not  have 
any  other  action  of  these  goods  but  action  of  detinue. 

Hussey,  the  King's  Attorue}'.  Felony  is  to  claim  feloniously  the 
property  without  cause  to  the  intent  to  defraud  him  in  whom  the  prop- 
erty is.  animo  furandi.,  and  here  notwithstanding  the  bailment  ut 
supra  the  property  remained  in  him  who  bailed  them,  then  this  property 
can  be  feloniously  claimed  by  him  to  whom  they  were  bailed  as  well  as 
by  a  stranger ;  therefore  it  may  be  felony  well  enough. 

The  Chancellor  [Booth].  Felony  is  according  to  the  intent,  and 
his  intent  may  be  felonious  as  well  here  as  if  he  had  not  the  possession. 

MoUneux,  ad  idem.  A  matter  lawfully  done  ma}^  be  called  felony 
or  trespass,  according  to  the  intent ;  sc.  if  he  who  did  the  act  do  not 
pursue  the  cause  for  which  he  took  the  goods,  as  if  a  man  distrain  for 
damage  feasant  or  rent  in  arrear,  and  then  he  sell  the  goods  and  kill  the 
beasts,  this  is  tort  now  where  at  the  beginning  it  was  good.  So  if  a 
man  come  into  a  tavern  to  drink  it  is  lawful ;  but  if  he  carry  away  the 
piece  or  do  other  trespass,  then  all  is  bad.  So  although  the  taking  was 
lawful  in  the  carrier  ut  supra,  etc.,  yet  when  he  took  the  goods  to 

1  Translation  of  Pollock  and  Wright,  Possession,  p.  134. 


J5ECT.  IV.]  CARRIEK'S   CASE.  G30 

another  place  ut  supra  be  did  not  pursue  his  cause,  and  so  by  his  act 
after  it  may  be  called  felony  or  trespass,  according  to  the  intent. 

BuiAN,  C.  J.  Where  a  man  does  an  act  out  of  his  own  head,  it 
may  be  a  lawful  act  in  one  case  anil  in  anotlier  nut,  according  to  his  act 
afterwards,  —  as  in  the  cases  which  you  have  put,  —  for  there  his  intent 
shall  be  judged  according  to  his  act ;  but  where  I  have  goods  by  vour 
bailment,  this  taking  cannot  be  made  bad  aaer  by  anything. 

Vavisour.  Sir,  our  case  is  better  than  a  bailment,  Ajr  here  the 
things  were  not  delivered  to  him,  but  a  bargain  that  he  should  carry  the 
goods  to  Southampton  ict  supra,  and  then  if  he  took  them  to  carrv 
them  thither  he  took  them  warrantably  ;  and  the  case  put  now  upon  the 
matter  shows,  that  is,  his  demeanor  after  shows,  that  he  took  them  as 
felon  and  to  another  intent  than  to  carry  them,  ut  siqyra,  in  which  case 
be  took  them  without  warrant  or  cause,  for  that  he  did  not  pursue  the 
cause,  and  so  it  is  felon}'. 

Choke,  J.  I  think  that  where  a  man  has  goods  in  his  possession 
by  reason  of  a  bailment,  he  cannot  take  them  feloniously,  being  in  pos- 
session ;  but  still  it  skms  here  that  it  is  felony,  for  here  tlfe  things 
which  were  within  the  bales  were  not  bailed  to  him,^— 011I3'  the  bales  as 
an  entire  thing  were  bailed  ut  supra  to  carry,  —  in  which  case  if  he  had 
given  the  bales  or  sold  them,  etc.,  it  is  not  felony ;  but  when  he  broke 
them,  and  took  out  of  them  what  was  within,  he  did  that  without  war- 
rant, —  as  if  one  bailed  a  tun  of  wine  to  carry  ;  if  the  bailee  sell  the  tun 
it  is  not  felony  nor  trespass  ;  but  if  he  took  some  out  it  is  felony  ;  and 
here  the  twenty  pounds  were  not  bailed  to  him,  and  peradventure  he 
knew  not  of  them  at  the  time  of  the  bailment.  So  is  it  if  I  bail  the 
key  of  my  chamber  to  one  to  guard  my  chamber,  and  he  take  mv 
goods  within  this  chamber,  it  is  felony  ;  for  they  were  not  bailed  to 
him. 

It  was  then  moved  that  the  case  ought  to  be  determined  at/;oramon 
law.^  The  matter  was  afterwards  argued  before  the  judges  in  the 
Exchequer  Chamber. 

And  there  it  was  holden  by  all  but  Nediiam,  J.,  that  whore  goods 
I  are  bailed  to  a  man  he  cannot  take  them  feloniously ;  but  Xedham 
held  the  contrary,  for  he  might  take  them  feloniously  as  well  as  an- 
other ;  and  he  said  it  had  been  held  that  a  man  can  take  his  own  goods 
feloniou.sly,  as  if  I  bail  goods  to  a  man  to  keep  and  I  come  privily  — 
intending  to  recover  damages  against  him  in  detinue  — and  I  take  the 
goods  privily,  it  is  felony.  And  it  was  holden  that  where  a  man  has 
possession  and  that  determines,  he  can  then  be  felon  of  the  things,  as 
if  I  bail  goods  to  one  to  carry  to  my  house  and  he  bring  tliem  to  my 
house  and  then  take  them  thereout,  it  is  felony,  for  bis  possession  is 
determined  when  they  were  in  my  house  ;  but  if  a  taverncr  serve  a  man 
with  a  piece,  and  be  take  it  away,  it  is  felony,  for  he  had  not  possession 
of  this  piece,  for  it  was   put  on  the   table  but  to  serve  him  to  drink. 

*  So  much  of  the  case  as  relate.^  to  this  motion  is  omitted. 


640  tunnard's  case.  [chap.  xni. 

And  so  is  it  of  my  butler  or  cook  in  my  house  ;  they  are  but  ministers 
to  serve  me,  and  if  they  carry  it  away  it  is  felony ;  for  they  had  not 
possession,  but  the  possession  was  all  the  while  in  me ;  but  otherwise 
perad venture  if  it  were  bailed  to  the  servants  so  that  they  are  in  pos- 
session of  it. 

Laicon,  J.  I  think  there  is  a  diversity'  between  bailment  of  goods 
and  a  bargain  to  take  and  carr}',  for  by  the  bailment  he  has  delivery  of 
possession  ;  but  b}'  the  bargain  he  has  no  possession  till  he  take  them, 
and  this  taking  is  lawful  if  he  takes  them  to  carry,  but  if  he  take  them 
to  another  intent  than  to  carry  them,  so  that  he  do  not  pursue  his  cause, 
I  think  that  shall  be  called  felony  well  enough. 

Brian,  C.  J.  I  think  that  it  is  all  one,  a  bargain  to  carry  them  and 
a  bailment,  for  in  both  cases  he  has  authority  of  the  same  person  in 
whom  the  property  was,  so  that  it  cannot  be  called  felon}',  M.  2  E. 
III.,  in  an  indictment  '■^felonice  abcluxit  uniim  equuni"  is  bad,  but  it 
should  be  ce2nt ;  so  in  ej-re  at  Nott.,  8  E.  III. ;  and  in  this  case  the 
taking  cannot  be  feloniousl}',  for  that  he  had  the  lawful  possession ;  so 
then  tlie  breaking  the  bales  is  not  felony,  vide  4  E.  II.  in  trespass,  for 
that  plaintiff  had  bought  a  tun  of  wine  of  defendant,  and  while  it  was  in 
defendant's  guard  defendant  came  with  force  and  arms  and  broke  the 
tun  and  carried  away  parcel  of  the  wine  and  filled  up  the  tun  with 
water. 

And  for  that  it  appeared  he  had  possession  before,  the  writ,  being 
vi  et  armis,  was  challenged  ;  and  yet  it  was  held  well,  and  he  pleaded 
not  guilt}-,  and  then  the  justices  reported  to  the  Chancellor  in  Council 
that  the  opinion  of  the  most  of  them  was  that  it  was  felony.^ 


TUNNARD'S   CASE. 

Old  Bailey.     1729. 

[Reported  Leach  {4ih  ed.)  214,  n.] 

John  Tunnard  was  tried  before  Lord  Chief  Justice  Raymond,  pres- 
ent Mr.  Baron  Hale  and  Mr.  Justice  Denton,  for  stealing  a  brown 
mare,  the  property  of  Henry  Smith.  It  appeared  in  evidence  the 
prosecutor  lived  in  the  Isle  of  Ely  ;  that  he  lent  the  prisoner  the  mare 
to  ride  to  a  place  three  miles  distant  ;  but  that  instead  of  riding  three 
miles  according  to  agreement  the  prisoner  rode  her  up  to  London,  and 
sold  her.  Lord  Chief  Justice  Raymond  left  it  with  the  jury  quo  animo 
he  had  ridden  the  mare  to  London,  and  they  found  him  guilty. 

Tee  Court.     The  finding  of  the  jury  will  make  this  case  felony  be- 

1  Ace.  State  v.  Fairclough,  29  Conn.  47  ;  Robinson  v.  State,  1  Coldw.  120.  See 
Kelyng,  82;  2  East  P.  C.  695 :  Chaplin  Crim.  Cas.  298;  6  Harv.  L.  Rev.  250.  —Ed. 


SECT.  IV.]  REX   V.   MADOX.  641 

cause  he  rode  the  mare  fartlier  than  he  had  agreed  to  do ;  for  if  there 
had  been  no  special  agreement  the  privity  would  have  remained,  and 
it  could  not  have  been  felony. 


REX  V.  MADOX. 
Crown  Case  Reserved.     1805. 

[Reported  Russell  ^  Rf/an,  301 .] 

This  was  an  indictment  for  a  capital  offence  on  the  24  O.  IT.  c.  45, 
tried  before  Mr.  Baron  Graham  at  the  summer  Assizes  at  Winchester, 
in  the  year  1805. 

The  first  count  was  for  stealing  at  West  Cowes  six  wooden  casks 
and  one  thousand  pounds'  weight  of  butter,  value  £20,  the  goods  of 
Richard  Bradley  and  Thomas  Clayton,  being  in  a  certain  vessel  called 
a  sloop  in  the  port  of  Cowes,  the  said  port  being  a  port  of  entry  and 
discharge,  against  the  statute.  The  second  count  was  for  grand  lar- 
ceny. The  third  count  was  like  the  first  except  as  to  the  property 
in  the  goods,  which  was  laid  in  one  Richard  Lashraore ;  and  the 
fourth  count  was  for  grand  larceny  of  the  goods  of  the  said  Richard 
Lashmore. 

The  butter  stolen  was  part  of  a  cargo  of  280  firkins  or  casks, 
shipped  at  Waterford,  in  Ireland,  on  board  a  sloop,  the  "  Benjamin," 
of  which  the  prisoner  was  master  and  owner,  bound  to  Shoreham  and 
Newhaven  in  Sussex,  —  two  hundred  and  thirty  of  the  casks  being 
consigned  to  Bradley  and  Clayton  at  Shoreham,  and  fifty  of  them  to 
Lashmore  at  Brighthelmstone. 

It  appeared  that  the  ordinary  length  of  this  voyage,  with  fair  winds, 
was  a  week  or  nine  days,  but  in  winter  sometimes  a  month  or  five 
weeks.  In  the  present  instance  the  voyage  had  been  of  much  longer 
duration. 

The  vessel  first  touched  at  Sheepshead,  in  Ireland,  in  distress.  The 
prisoner  went  on  shore  at  Beerhaven,  where  he  signed  a  protest,  bear- 
ing date  on  the  20th  December,  1804.  From  thence  they  proceeded  to 
Lundy  Island  and  to  Tenby  in  Wales,  where  they  arrived  in  February, 
1805,  and  at  which  place  the  prisoner  went  on  shore  and  stayed  four 
or  five  weeks,  the  winds  being  foul.  From  thence  they  proceeded  to 
Scilly  and  then  to  Cowes,  where  they  arrived  on  the  last  day  of 
March  or  the  1st  of  April,  1805.  Cowes  was  in  their  course,  but  they 
had  previously  met  with  very  foul  weather  and  had  been  driven  to  the 
westward  of  Madeira,  during  which  time  the  vessel  liad  been  often  in 
great  distress  ;  but  no  part  of  the  butter  had  at  any  time  been  thrown 
overboard.  Upon  the  arrival  at  Cowes  the  prisoner  went  on  shore 
and  shortly  afterwards  applied  to  one  Lallow,  a  sailmaker,  for  a  suit  of 

41 


642  REX   V.    MADOX.  [chap.  XIII. 

sails.  Lallow  went  aboard  the  vessel  and  took  measure  for  the  sails  ; 
and  after  his  return  to  Cowes  the  prisoner  called  upon  him  again  and 
bespoke  a  hammock,  and  then  stated  that  he  had  thirteen  casks  of 
butter  on  board  the  vessel,  belonging  to  himself,  and  requested  Lallow 
to  send  for  them  and  deposit  them  in  his  sail-loft  until  the  prisoner 
returned  from  Newhaven.  At  the  same  time  he  gave  Lallow  a  note 
or  order  for  the  mate  of  the  vessel,  by  which  the  mate  was  required 
to  deliver  thirteen  casks  of  butter  to  the  bearer.  Lallow  dispatched 
some  of  his  men  with  the  order  and  a  boat  to  the  vessel,  where  they 
arrived  in  the  night,  and  after  having  delivered  the  order  to  the  mate, 
received  from  him  seven  casks  of  butter  in  the  first  instance,  being  as 
much  as  the  boat  would  carry  ;  and  upon  their  return  to  the  vessel, 
during  the  night,  received  from  the  mate  the  other  six  casks.  The 
order  did  not  require  the  mate  to  deliver  any  particular  casks  ;  and  it 
appeared  by  the  evidence  of  the  mate  that  he  took  them  as  they  came 
to  hand.  The  casks  had  been  originally  stowed  in  the  hold  and  upon 
the  half-decks  as  they  came  on  board,  and  those  delivered  to  Lallow's 
men  were  taken  from  the  half-decks,  the  others  being  battened  down. 
The  seven  casks  first  delivered  by  the  mate  were  taken  to  Lallow's 
premises  and  deposited  there  ;  the  other  six  casks  were  seized  by  the 
custom-house  officers.  The  prisoner  was  at  Cowes  and  was  informed 
by  Lallow  of  the  seizure,  at  which  he  expressed  anger,  speaking  of  the 
seizure  as  a  robbery  and  of  the  casks  so  seized  as  his  own  property 
and  venture.  He  also  spoke  of  going  to  claim  his  property,  and  after- 
wards told  Lallow  that  he  would  give  him  an  order  to  claim  it,  as  he 
must  himself  go  away.  The  prisoner  afterwards  went  to  the  vessel 
and  passed  the  rest  of  the  night  on  board.  The  remainder  of  the 
cargo  was  delivered  at  Shoreham  and  Newhaven. 

The  protest  made  by  the  prisoner,  and  bearing  date  at  Beerhaven, 
the  20th  of  December,  1804,  purported,  among  other  things,  that 
the  prisoner  had  been  obliged  to  throw  overboard  several  casks  of 
butter ;  and  it  appeared  that  he  had  held  the  same  language  to  the 
consignees  as  his  excuse  for  delivering  short  of  their  respective 
consignments. 

Upon  this  case  the  counsel  for  the  prisoner  raised  two  objections : 
first,  that  no  larceny  had  been  committed  by  the  prisoner ;  and  sec- 
ondly, that  the  offence  was  not  capital,  —  the  larceny,  if  any,  being  of 
goods  in  his  own  vessel. 

Upon  the  first  objection  it  seemed  to  be  admitted  that  if  the  mate, 
by  the  order  of  the  prisoner,  had  broken  bulk  by  taking  the  casks 
from  those  which  were  battened  down,  it  might  have  been  larceny  in 
the  prisoner ;  and  the  learned  judge  thought,  that  as  the  casks  were 
taken  from  the  half-deck,  where  they  were  originally  stowed,  there  was 
no  material  difference.  It  was  then  contended  that  the  prisoner  went 
into  Cowes  without  any  necessity,  and  out  of  the  course  of  his  voyage  ; 
and  the  case  was  compared  to  those  wherein  it  had  been  held,  that  if 
goods  are  delivered  to  a  carrier  to  carry  to  a  certain  place,  and  he 


SECT.  IV.]  REGINA   V.   POVSEK.  643 

carries  them  elsewhere  ami  embezzles  them,  it  is  no  felouy.  1  llnle, 
504,  505  ;  2  East  P.  C.  693,  G95,  G'JG.  But  the  learned  judge  thought 
that  the  severance  of  a  part  from  the  rest,  and  the  formed  design  of 
doing  so,  took  the  case  out  of  those  authoritieH,  if  they  couhl  be  con- 
sidered as  applying  to  the  present  case. 

Upon  the  second  objection,  those  cases  were  cited  wherein  it  had 
been  held  that  the  12  Anne  St.  1,  c.  7,  against  larceny  in  a  dwelling- 
house,  to  the  value  of  forty  shillings,  does  not  extend  to  a  stealing  by 
a  man  in  his  own  house  (2  East  i\  C.  044)  ;  but  the  learned  judge 
thought,  that  though  this  might  be  the  law  as  to  a  person  stealing  the 
goods  of  another  under  the  protection  of  his  own  house,  yet  the  ease 
of  a  man  stealing  the  goods  of  another  laden  on  board  his  own  vessel 
was  different,  as  in  such  case  the  vessel  for  the  voyage  might  be  con- 
sidered as  the  vessel  of  the  freighter ;  and  tliat  if  the  owner  should 
take  the  command  of  the  vessel,  the  stealing  the  goods  committed 
to  his  care  would  be  an  aggravation  of  his  offence.  And  he  further 
observed  that  the  words  and  occasion  of  the  two  statutes  would  admit 
of  a  distinction. 

The  whole  case  was  therefore  left  to  the  jury,  who  found  the  pris- 
oner guilty  ;  but  the  sentence  was  respited,  in  order  that  the  opinion  of 
the  judges  might  be  taken. 

In  Michaelmas  term,  1805,  the  case  was  considered  by  the  judges, 
who  were  of  opinion  that  it  was  not  larceny ;  and  that  if  it  were 
larceny,  it  would  not  have  amounted  to  a  capital  offence  within  the 
statute  24  G.  II.  c.  45. 


REGINA  V.  POYSER. 
Crown  Case  Rkserved.     1851. 

[Reported  2  Denison  C.  C.  233.] 

The  prisoner  was  tried  before  Mr.  Baron  Alderson,  for  larceny,  at 
the  spring  Assizes,  a.  d.  1851,  for  the  county  of  Leicester.  It  ap- 
peared at  the  trial  that  the  prisoner  was  employed  by  the  prosecutor, 
who  was  a  tailor,  to  sell  clothes  for  him  about  the  country,  and  upon 
the  following  terms :  The  prosecutor  fixed  the  price  of  each  article, 
and  the  prisoner  was  entrusted  to  sell  them  at  that  fixed  price,  and 
when  he  had  done  so  he  was  to  bring  back  the  money  and  the  re- 
mainder of  the  clothes  unsold,  and  was  to  have  three  shillings  in  the 
pound  on  the  moneys  received  for  his  trouble.  On  the  12th  of  Eebruary 
last  he  took  away  a  parcel  of  clothes  upon  these  terms,  and  inste.ad  of 
disposing  of  them  according  to  the  above  arrangement,  he  fraudulently 
pawned  a  portion  of  them  for  his  own  benefit,  and  having  po  done  he 
afterwards  fraudulently  appropriated  the  residue  to  his  own  use.  These 
facts  having  appeared,  the  learned  baron  directed  the  jury,  that  the 


644  KEGINA  V.   POYSER.  [CHA.P.  XIII. 

original  bailment  of  the  goods  by  the  prosecutor  to  the  prisoner  was 
determined  by  his  unlawful  act  in  pawning  part  of  them,  and  that  the 
subsequent  fraudulent  appropriation  by  the  prisoner  of  the  residue  of 
the  goods  to  his  own  use  would  in  point  of  law  amount  to  larceny. 
Upon  this  direction  the  prisoner  was  found  guilty,  and  the  question 
for  this  court  was,  whether  this  direction  was  right. 

On  the  26th  of  April  this  case  was  argued  by  O'Brien^  for  the 
prisoner. 

The  contract  with  the  prisoner  was  distinct  and  separate  with  regard 
to  each  article  entrusted  to  him.  The  fact  of  his  receiving  all  the 
articles  at  one  time  was  a  mere  accident,  which  makes  no  legal  differ- 
ence in  the  case  ;  each  article  had  a  separate  price  affixed  to  it.  After 
he  had  pawned  some  of  the  articles,  when  was  the  original  bailment  of 
the  others  determined  ? 

Lord  Campbell.  The  case  states,  that  on  the  r2th  of  February,  he 
took  away  a  parcel  of  clothes  ;  we  must,  therefore,  regard  the  delivery 
of  that  parcel  as  one  bailment  of  all  the  articles  contained  in  the 
parcel. 

O'Brien.  The  prisoner  had  authority  to  break  the  bulk  ;  the  con- 
tract imposed  on  him  the  necessity  of  opening  it  in  order  to  take  out 
each  article  and  deal  with  it  separately. 

Coleridge,  J.  Why  may  not  there  be  a  single  contract  embracing 
several  particulars,  as  for  instance,  where  a  carrier  is  entrusted  with 
various  articles  to  leave  at  different  places,  all  of  which  articles  are 
placed  in  one  bag ;  if  he  wrongfully  deals  with  any  one,  is  it  not  a 
breaking  bulk  of  the  whole  ? 

O'Brien.  The  doctrine  of  breaking  bulk  turns  on  there  being  no 
authority  to  open  the  parcel  and  deal  with  any  one  of  the  articles 
separately  from  the  rest. 

Alderson,  B.  If  you  can  make  out  this  to  be  like  the  case  of  a 
carrier  entrusted  with  several  parcels  under  several  distinct  contracts, 
then  certainly  it  is  no  larceny. 

Lord  Campbell,  C.  J.  I  think  the  conviction  was  right.  The  case 
must  be  considered  as  though  it  was  a  single  bailment.  If  there  had 
been  several  bailments,  then  the  wrongful  dealing  with  one  of  the 
articles  so  bailed  would  not  affect  the  case  as  to  any  other  article.  But 
it  makes  no  difference  that  in  one  parcel  there  were  several  articles. 
The  law  has  resorted  to  some  astuteness  to  get  rid  of  the  difficulties 
that  might  arise  in  the  case  of  a  wrongful  dealing  with  one  or  more  of 
several  articles,  all  of  which,  when  entrusted,  had  been  contained  in 
one  bulk. 

Alderson,  B.,  and  Platt,  B.,  concurred. 

Coleridge,  J.  The  fact  of  different  prices  being  affixed  to  each 
article  makes  no  difference  in  the  case. 


SECT.  IV.]  COMMONWEALTH   V.   JAMES.  645 


COMMONWEALTH  v.   JAMES. 
Supreme  Judicial  Colut  of  Massachusetts.     1823. 

[Reported  1  Pickering,  375.] 

An  indictment  was  found  in  this  case  as  follows : '  ''  The  jurors, 
etc.,  present,  that  Noah  Jaraes,  of,  etc.,  miller,  on,  etc.,  at  Boston  afore- 
said, with  force  and  arms,  three  tons  weight  of  barilla  of  the  value,  etc., 
of  the  goods  and  chattels  of  one  Thomas  Park,  in  his  possession  then 
and  there  being,  did  then  and  there  feloniously  steal,"  etc 

The  prisoner  was  convicted  and  sentenced  at  the  Municipal  Court 
and  he  appealed  to  this  court. 

At  the  trial  in  November  terra,  1822,  before  Parker,  C.  J.,  it  was 
in  evidence  that.  Park  having  a  quantity  of  barilla  which  he  wished  to 
have  ground,  sent  it  to  a  mill  kept  by  the  prisoner  for  grinding  plaster 
of  Paris,  barilla,  and  other  articles  ;  that  after  it  was  ground,  a  mixture 
consisting  of  three-fourth  parts  of  barilla  and  one-fourth  part  of  plaster 
of  Paris  was  returned  by  the  same  truckman  who  carried  the  barilla  to 
the  mill,  he  being  on  both  occasions  in  the  employment  of  Park. 

The  prisoner's  counsel  contended,  that  it  appearing  that  the  barilla 
was  sent  to  and  brought  from  the  mill  by  a  truckman,  who  for  aught 
appearing  in  the  case  was  alive  and  within  the  reach  of  the  process  of 
the  court  at  the  time  of  trial,  without  his  testimony  there  was  no  legal 
proof  that  the  barilla  was  ever  delivered  to  the  prisoner  or  the  mixture 
received  from  him.  But  there  being  evidence  that  the  barilla  was 
ground  at  the  prisoner's  mill,  by  his  order,  he  being  sometimes  present, 
and  a  bill  of  the  expense  of  grinding  having  been  made  out  and  pre- 
sented by  him,  and  the  mone}'  received  by  him,  there  being  also  evi- 
dence tending  strongly  to  show  that  he  had  practised  a  fraud  upon  the 
barilla,  the  objection  was  overruled  ;  and  whether  the  mixture  was 
accidental  or  fraudulent,  and  whether  it  was  caused  by  the  prisoner  or 
not,  were  questions  left  to  the  jury  to  decide,  upon  a  great  deal  of  cir- 
cumstantial evidence,  no  person  having  seen  him  do  it,  and  the  laborer 
who  had  the  immediate  charge  of  the  grinding  having  sworn  that  no 
mixture  was  made  except  what  was  accidental. 

It  was  likewise  contended,  that  supposing  the  facts  to  be  as  the  evi- 
dence on  the  part  of  the  government  tended  to  prove  them,  the  case 
made  out  was  not  larceny  but  only  a  breach  of  trust,  or  at  most  a  fraud, 
with  which  the  prisoner  was  not  charged  in  the  indictment  On  this 
point  the  jury  were  instructed  that  if  they  were  satisfied  from  the  evi- 
dence that  the  prisoner  had  taken  from  the  parcel  of  barilla  any  quan- 
tity with  a  view  to  convert  it  to  his  own  use,  introducing  into  the  mass 
an  article  of  inferior  value  for  the  purpose  of  concealing  the  fraud,  ho 
was  guilty  of  larceny. 

1  The  caption  of  the  indictmeDt  is  omittod. 


646  COMMONWEALTH  V.   JAMES.  [CHAP.  XIII. 

The  jury  having  found  a  verdict  against  the  prisoner,  he  moved  for  a 
new  trial  on  account  of  these  directions  of  the  judge. ^ 

Putnam,  J.,  delivered  the  opinion  of  the  court. 

To  constitute  the  crime  of  larceny,  there  must  be  a  felonious  taking 
and  carrying  away  of  the  goods  of  another.  It  is  supposed  to  be  vi  et 
armis,  invito  domino.  But  actual  violence  is  not  necessary ;  fraud 
may  suppl}'  the  place  of  force. 

The  jury  have  found  that  the  defendant  took  the  goods  with  an  intent 
to  steal  them  ;  and  the  verdict  is  well  warranted,  if  at  the  time  tlie 
defendant  took  them,  the}-  were  not  lawfully  in  his  possession  with  the 
consent  of  the  owner,  according  to  a  subsisting  special  contract,  in  con- 
sequence of  an  original  delivery  obtained  without  fraud.  If  that  was 
the  case,  the  inference  which  the  counsel  for  the  defendant  draw  would 
follow,  that  such  a  taking  would  not  be  felony  but  a  mere  breach  of 
trust,  for  which  a  civil  action  would  lie,  but  concerning  which  the  pub- 
lic have  no  right  to  inquire  by  indictment. 

The  counsel  for  the  defendant  have  referred  us  to  13  Ed.  IV.,  fol.  9, 
as  the  authorit}"  upon  this  point.     The  case  was  as  follows.^ 

1  have  been  thus  minute  in  examining  this  case,  as  it  is  referred  to  as 
the  foundation  upon  which  many  subsequent  decisions  rest.  It  will  be 
perceived  that  here  maj'  be  found  the  distinctions  which  are  recognized 
in  the  text  books  upon  this  subject.  Thus,  if  the  party  obtain  the 
delivery  of  the  goods  originally  without  an  intent  to  steal,  a  subsequent 
conversion  of  them  to  his  own  use  while  the  contract  subsisted  would 
not  be  felony ;  but  if  the  original  intent  was  to  steal,  and  the  means 
used  to  obtain  the  deliver}'  were  merely  colorable,  a  taking  under  such 
circumstances  would  be  felon}-.  So  if  the  goods  were  delivered  origi- 
nall}'  upon  a  special  contract,  which  is  determined  bj'  the  fraudulent 
act  of  him  to  whom  the}'  were  delivered,  or  by  the  completion  of  the 
contract,  a  taking  animo  furandi  afterwards  should  be  adjudged  to  be 
felony. 

In  the  application  of  these  general  rules  to  the  cases  which  arise,  it 
is  obvious  that  shades  of  difference,  like  the  colors  of  the  rainbow,  so 
nearly  approach  each  other  as  to  render  it  extremely  difficult  to  dis- 
criminate them  with  satisfactory  precision.  The  humane  rule  of  the 
law  is,  that  in  cases  of  doubt  the  inclination  should  be  in  favor  of  the 
defendant.  The  seeming,  perhaps  real,  contradictions  to  be  met  with 
in  the  English  decisions  may  have  been  influenced  by  the  desire  to  save 
human  life. 

The  case  of  Rex  v.  Channel,  2  Str.  793,  cited  for  the  defendant,  was 
an  indictment  against  a  miller  employed  to  grind  wheat,  stating  that 
he  with  force  and  arms  unlawfully  did  take  and  detain  part  of  it. 
The  indictment  was  held  bad  upon  demurrer.  The  reasons  assigned  in 
the  book  are,  that  there  was  no  actual  force  laid  and  that  this  was  a 

1  Arguments  of  counsel  and  part  of  the  opinion  not  relating  to  the  question  of 
larceny,  have  been  omitted. 

2  The  learned  judge  here  stated  the  Carrier's  case,  supra. 


6ECT.  IV.]  COMMONWEALTH    V.    JAMF.S.  647 

matter  of  a  private  nature  ;  but  a  better  reason  seems  to  ns  to  liave 
been  that  tliere  was  no  averment  that  the  defendant  took  the  wheat 
J'eloHioi(sly. 

The  case  of  The  King  v.  Haynes,  cited  for  the  defendant  from  4  M. 
&  S.  214,  was  an  indictment  for  a  fraud  against  a  miller  for  delivering 
oatmeal  and  barley  instead  of  wheat  whicii  was  sent  to  be  ground.  It 
is  not  for  a  felony.  The  court  thought  no  in<lietalile  offence  was  hct 
forth.  The  question  whether  if  the  miller  had  taken  any  of  the  corn, 
which  was  sent  to  be  ground,  with  an  intent  to  steal  it,  was  not  then 
under  consideration. 

In  the  case  at  bar,  the  goods  came  lawfull}-  into  the  hands  of  the 
defendant  b}-  the  delivery  of  the  owner.  If  he  is  to  be  couvieied,  it 
must  be  on  the  ground  that  he  took  the  goods  as  a  felon  after  the  spe- 
cial contract  was  determined. 

I  will  refer  to  some  cases  which  illustrate  this  point.  Thus,  in  Kex 
V.  Charlewood,  before  Gould,  J.,  and  Perryn.  B.,  1786,  cited  in  Kast's 
Cr.  L.,  689,  rejjorted  in  Leach,  Case  180,  the  jury  were  instructed,  that 
if  they  thought  the  prisoner  performed  the  journey  for  which  he  hired 
the  horse,  and  returned  to  London,  where  instead  of  delivering  it  to  the 
owner,  he  afterwards  converted  it  to  his  own  use,  that  might  be  felony  ; 
"  for,"  said  the  court,  "  the  end  and  purpose  of  the  hiring  of  the  horse 
would  be  over." 

In  Kelyng,  35,  a  silk  throwster  had  men  to  work  in  his  own  house, 
and  delivered  silk  to  one  of  them  to  work,  and  the  workman  stole  away 
part  of  it;  and  it  was  held  to  be  felony  notwithstanding  the  delivery. 
East,  in  his  Crown  Law,  supposes  that  if  the  silk  had  been  delivered  to 
be  carried  to  the  house  of  the  workman,  and  he  had  there  converted  a 
part  of  it  to  his  own  use,  it  could  not  have  been  felony  ;  but  that  as  it 
was  to  be  worked  up  in  the  house  of  the  owner,  it  might  be  considered 
as  never  in  fact  out  of  his  possession.  But  Kelyng  seems  to  put  the 
case  upon  the  ground  of  the  special  contract,  "  that  the  silk  was  deliv- 
ered to  him  only  to  work,  and  so  the  entire  property  remained  in  the 
owner." 

But  whatever  may  be  the  true  ground  of  decision  in  that  case,  there 
is  a  case  in  1  Roll.  Abr.  73,  pi.  16,  which  is  recognized  as  good  law  by 
Hawkins,  East,  and  other  writers,  which  is  very  applicable  to  the  ca.se 
at  bar.  "  If  a  man  says  to  a  miller  who  keeps  a  corn  mill,  thou  hast 
stolen  three  pecks  of  meal,  an  action  lies  ;  for  although  the  corn  was 
delivered  to  him  to  grind,  nevertheless  if  he  steal  it,  it  is  felony,  being 
taken  from  the  rest."  Langley  v.  Bradshawe,  in  Error,  8  Car.  B.  R. 
That  decision  proceeded  upon  the  ground  of  a  determination  of  the 
privity  of  the  bailment.  Hawkins  observes  (bk.  i.  c.  33,  §  4)  that  such 
possession  of  a  part  distinct  from  the  whole  was  gained  by  wrong  and 
not  delivered  by  the  owner ;  and  also,  that  it  was  obtained  basely, 
fraudulently,  and  clandestinely. 

This  remark  is  peculiarly  applicable  to  the  case  at  bar ;  for  there  is 
no  evidence  that  the  owner  intended  to  divest  himself  of  his  property 


648  REX  V.  PEAR.  [chap.  xih. 

l)y  the  delivering  of  it  to  the  defendant.  The  defendant  did  not  pursue 
the  purpose  for  which  it  was  deUvered  to  him,  but  separated  a  part  from 
the  rest,  for  his  own  use,  without  pretence  of  title  ;  and  b}'  that  art  the 
contract  was  determined.  From  thenceforward  the  legal  possession 
was  in  the  owner,  and  a  taking  of  the  jjart  so  fraudulently  separated 
from  the  rest,  animo  fwandi,  must  be  considered  as  larceny.^ 


SECTION  IV.  (continued.) 
(c)  Lakcent  by  Thick. 

REX  V.  PEAR. 
Crown  Case  Reserved.     1779. 

[Reported  2  East  P.  C.  685.] 

John  Pear  was  indicted  for  stealing  a  black  mare,  the  property  of 
Samuel  Finch.  On  the  2d  Jul}',  1779,  the  prisoner  hired  the  mare  of 
Finch,  who  lived  in  London,  for  that  day,  in  order  to  go  to  Sutton  in 
Surrey,  and  told  him  that  he  should  return  at  eight  o'clock  the  same 
evening.  Finch,  before  he  let  the  prisoner  the  mare,  inquired  of  him 
where  he  lived,  and  whether  he  wex-e  a  housekeeper ;  to  which  he 
answered,  that  he  lived  at  No.  25  in  King  Street,  and  was  only  a  lodger. 
The  prisoner  not  returning  as  he  had  promised,  the  prosecutor  went 
the  next  day  to  inquire  for  him  according  to  the  direction  he  had  given  ; 
but  no  such  person  was  to  be  found.  It  turned  out  that  the  prisoner 
had  in  the  afternoon  of  the  same  2d  of  July  sold  the  mare  in  Smithfield. 
In  summing  up  this  evidence  to  the  jury,  Mr.  Justice  Ashhurst,  who 
tried  the  prisoner,  told  them  that  if  they  were  of  opinion  that  tlie  pris- 
oner hired  the  mare  with  an  intent  of  taking  the  journey  mentioned, 
and  afterwards  changed  that  intention,  then  as  she  was  sold  whilst  the 
privity  of  contract  subsisted,  they  ought  to  acquit  the  prisoner.  But 
if  they  were  of  opinion  that  the  journey  was  a  mere  pretence  to  get  the 
mare  into  his  possession,  and  that  he  hired  her  with  an  intention  of 
stealing  her,  they  ought  to  find  him  guilty :  and  he  would  save  the 
point  for  the  opinion  of  the  judges.  The  jury  found  the  prisoner  guilty. 
This  case  underwent  a  great  deal  of  discussion,  and  the  judges  delivered 
tlieir  opinion  seriatim  upon  it,  on  the  4th  February,  1780,  at  Lord  C. 
J.  De  Grey's  house  ;  and  on  the  22d  of  the  same  month  — 

Mr.  Baron  Perryn  delivered  their  opinion  at  the  O.  B.  as  follows :  * 
(After  stating  the  indictment,  evidence,  and  finding  of  the  jury  as  above 

1  Ace.  Com.  V.  Brown,  4  Mass.  580;  Nichols  v.  People,  17  N.  Y.  114.  —  Ed. 

2  This  judgment  was  settled  and  approved  by  several  of  the  judges  before  it  was 
delivered.     (East's  note.) 


SECT.  IV.]  REX   V.   PEAR.  649 

Stated.)     Tills  case  has  been  maturely  considered  by  all  the  judges, 
and  eleven  '  of  them,  who  met  for  the  [)uri>o.se,  delivered  their  opinions 
at  large  upon  the  subject :  seven  of  them  hehl  the  otfence  to  l>e  a  clear 
felony  ;  two  of  them  were  of  opinion  that  it  was  not  felony  ;  and  the 
other  two  entertained  great  douljts  at  the  last;    which  doubts  were 
founded  upon  two  statutes  which  he  should  take  notice  of.     Three  out 
of  the  lour  dissenting  judges  agreed  with  the  seven,  that  Ijy  the  princi- 
l)les  of  the  common  law  tiiis  was  felony,     liut  the  iloubts  and  opinions 
of  those  four  judges  were  founded  chielly  on  the  statutes  33  II.  8  and  3U 
G.  2,  against  obtaining  goods  by  false  tokens  or  false  pretences.     Two 
of  the  judges  thought  that  as  the    delivery   of  the   mare   was  obtained 
from  the  owner  by  means  of  asserting  that  which   was  false,  viz.  that 
the  prisoner  wanted  to  go  a  journey  which  he  never  intended  to  lake 
at  all ;  and  as  the  two  statutes  before  mentioned  had  made  the  offence 
of  obtaining  goods  by  false  tokens  or  false  pretences   punishable   as 
a  misdemeanor  only,  and  the   stat.  83    H.    8,  had   distinguished  the 
case  of  obtaining  goods  b}'  false  tokens  from  the   case   of  olttaining 
goods  b}-  stealth  ;  they  were  bound  by  those  statutes  to  say,  that  the 
prisoner's  offence  was  not  felony.      One  of  them  also  held  that   this 
was  not  felony  by  the  common  law ;  because  there  was  no  actual  tak- 
ing of  the  mare  by  the  prisoner.     But  ten  out  of  the  eleven   judges 
held  it  to  be  clear   that    the  otfonce  would   have  been  felony  by  the 
common  law,  if  the  statutes  had  never  existed  ;  and  seven  of  them  held 
that  it  was  not  within  or  at  all  affected  by  the  statutes  of  II.  8  or  G.  2. 
That  larceny  was  defined  by  Lord  Coke  to  mean  a  felonious  and  fraud- 
ulent taking  and  carrying  away  of  the  goods  of  another.     Hut  it  was 
settled  by  old  authorities,  that  the  taking  need  not  be  by  force.     If  a 
carrier  or  porter  received  goods  to  carry  from  one  place  to  another,  and 
he  opened  the  pack  and  sold  them,  that  was  felony  ;  yet  in  that  case 
there  was  no  taking  by  force,  but  on  a  delivery  by  the  owner.    That 
the  reason  assigned  for  the  determination  in  Kel.  82  was  l)eeause  the 
opening  and  disposing  of  them  declared  that  his  intent  originally  was 
not  to  take  the  goods  upon  the  agreement  and  contract  of  the  party, 
but  only  with  a  design  of  stealing  them.     So  if  A.  cheapened  goods  of 
B.'s,  and  B.  delivered  them  to  A.  to  look  at,  and  A.  ran  away  with  them, 
this  was  felony  by  the  apparent  intent  of  A.    T.  Ray.  216  ;  Kel.  82.    So 
if  a  horse  were  upon  sale,  and  the  owner  let  the  thief  mount  him  in 
order  to  try  him,  and  the  thief  rode  away  with  him,  it  was  felony.     Kel. 
82.      So  in  the  case  of  one  Tunnard,  tried  at  the  O.  B.  in  Octol)er 
Sessions,  1729,  who  was  indicted  for  stealing  a  brown  mare  of  Henry 
Smith's  :  and  upon  the  evidence  it  appeared,  that  Smith  lived  in  the 
Isle  of  Ely,  and  lent  Tunnard  the  mare  to  ride  three  mihs  ;  but  he, 
instead  of  riding  three  miles  only,  rode  her  up  to  London  and  sold  her: 
this  was  holden  to  be  felony.     And  Lord  C.  J.  Raymond,  who  tried 

1  Afr.  .Tnstice  Blackstone,  the  other  judpe,  who  was  absent  on  account  of  illness, 
always  held  that  it  waa  felony.     (East's  note. ) 


650  KEX   V.   PEAR.  [chap.  XIIL 

the  prisoner,  left  it  to  the  jury  to  consider,  Whether  Tunnard  rode  away 
with  her  with  an  intent  to  steal  her?  and  the  jury  found  him  guiltv. 
That  here  tlie  same  directions  were  given  to  the  jury  bj'  the  learned 
judge  who  tried  the  prisoner,  and  the  jury  had  given  the  same  verdict. 
That  even  in  the  case  of  buiglary,  which  the  law  defined  to  be  tlie 
breaking  into  a  house  in  the  night  time  with  intent  to  commit  felony,  if 
a  man  procured  the  door  of  a  house  to  be  opened  by  fraud,  and  by  that 
means  entered  into  the  house  through  the  door-way  without  any  actual 
breaking,  it  had  been  adjudged  to  be  burgUiry.  That  in  all  these  cases 
the  intention  was  the  thing  chiefly  regarded,  and  fraud  supplied  the 
place  of  force.  That  what  was  the  intention  was  a  fact,  which  in  ever}' 
case  must  be  left  upon  the  evidence  to  the  sound  judgment  of  a  jury. 
And  in  this  case  the  jury  had  found  that  at  the  time  when  the  prisoner 
obtained  the  possession  of  the  mare,  he  intended  to  steal  her.  That 
the  obtaining  the  possession  of  the  mare,  and  afterwards  disposing  of 
her  in  the  manner  stated,  was  in  the  construction  of  law  such  a  taking 
as  would  have  made  the  prisoner  liable  to  an  action  of  trespass  at  the 
suit  of  the  owner,  if  he  had  not  intended  to  steal  her.  For  she  was 
delivered  to  the  prisoner  for  a  special  purpose  only,  viz.  to  go  to  Sutton, 
which  he  never  intended  to  do,  but  immediately  sold  her.  Tiiat  in  this 
light  the  case  would  be  similar  to  what  was  laid  down  by  Littleton,  sect. 
71,  who  says,  "  If  1  lend  to  one  mj^  sheep  to  dung  his  land,  or  my 
oxen  to  plough  the  land,  and  he  killeth  my  cattle,  I  may  have  trespass 
notwithstanding  the  lending."  That  if  in  such  a  case  trespass  would 
have  lain,  there  could  be  no  doubt  but  that  in  this  case,  where  the 
felonious  intent  at  the  time  of  obtaining  the  possession  was  found  by 
the  jury,  that  it  was  felony  by  the  common  law.  That  ten  of  the 
judges  out  of  the  eleven,  therefore,  were  of  opinion,  that  if  a  person 
obtained  the  deliver}^  of  a  thing  by  fraud  and  falsehood,  intending  at 
the  time  that  he  so  obtained  the  delivery  to  steal  it ;  upon  the  principle 
of  the  common  law  and  the  adjudged  cases  which  had  been  mentioned, 
if  the  statutes  had  not  existed,  his  offence  would  be  felon}'.^  That  the 
next  question  was,  Whether  this  offence  were  within  or  at  all  affected 
b}'  the  statutes  of  H.  8  and  G.  2.^  Seven  of  the  judges  were  of 
opinion  that  it  was  not.     That  the  stat.  of  H.  8  w-as  confined  to  the 

^  On  the  debate  of  this  case,  Ashurst,  J.,  said,  "  Wherever  there  is  a  real  and  bona 
fide  contract  and  a  delivery,  and  afterwards  the  goods  are  converted  to  the  party's 
own  u.se,  that  is  not  felony.  But  if  there  be  no  real  and  bona  fide  contract,  if  the 
understanding  of  the  parties  be  not  the  same,  the  contract  is  a  mere  pretence,  and  the 
taking  is  a  taking  with  intent  to  commit  felony.     (Ea.st's  note.) 

2  On  the  debate  in  this  case  Eyre.  B.,  adverting  to  these  statutes,  said  he  doubted 
if  there  were  not  a  distinction  in  this  respect  between  the  owner's  parting  with  the 
possession  and  with  the  property  in  the  thing  delivered.  That  where  goods  were  de- 
livered upon  a  false  token,  and  the  owner  meant  to  part  with  the  property  absolutely 
and  never  expecteil  to  have  the  goods  returned  again,  it  might  be  difficult  to  reach  the 
case  otherwise  than  through  the  statutes;  aliter,  wherehe  parted  with  the  posse.ssion 
only:  for  there  if  the  possession  were  obtained  by  fraud,  and  not  taken  according  to 
the  agreement ;  it  was  on  the  whole  a  taking  against  the  will  of  the  owner ;  and  if 
done  animo  furandi,  it  was  felony.     (MS.  Buller,  J.) 


SECT.  IV.]  KEGINA   V.    BUN'CE.  C51 

cases  of  obtaining  goods  in  other  men's  names,  by  false  tokens  or 
counterfeit  letters,  made  in  any  other  man's  name.  The-  stat.  of  G. 
2  extended  that  law  to  all  cases  where  goods  were  obtained  by  false 
pretences  of  any  kind.  But  both  these  statutes  were  confined  to  cases 
where  credit  was  obtained  in  the  name  of  a  third  person  ;  and  did  not 
extend  to  cases  where  a  man,  on  his  own  account,  got  goods  witli  an 
intention  to  steal  them.  That  besides,  the  seven  judges  lield  that 
neither  of  those  statutes  were  intended  to  mitigate  the  common  law, 
or  to  make  that  a  less  offence  wliicii  was  a  greater  before.  On  the 
contrary,  the  legislature,  by  those  statutes,  meant  U)  intlict  a  severer 
punishment  in  the  cases  of  fraud  than  the  common  law  hail  done.  TImt 
in  many  cases  it  was  extremely  dillieult.  and  sometimes  imp<»ssible  to 
prove  what  the  olfender's  original  intention  was.  The  circumstiinces 
eviilencing  a  felonious  intent,  or  the  contrary,  were  so  various,  that 
Hale,  p.  509,  says  it  is  impossible  to  prescribe  them  ;  they  must  be  left 
to  the  consideration  of  a  judge  and  jury.  That  where  an  original 
felonious  intent  appeared,  the  statutes  did  not  ajjply.  Where  no  such 
intent  appeared,  if  the  means  mentioned  in  the  statutes  were  made  use 
of,  the  legislature  had  made  the  offender  answerable  criminally,  who 
before  by  the  common  law  of  the  land  was  only  answerable  civilly. 
That  in  the  prisoner's  case  the  intention  was  ai)parent,  and  the  jury 
had  rightly  found  that  it  was  felonious.  The  crime  then  was  felony, 
and  of  a  nature  which  the  statute  law  had  made  punishable  witli 
death.^ 


REGINA  V.  BUNCE. 
Oxford  Assizes.     1859. 

[Reported  1  Foster  4'  Finlason,  523.] 

The  prisoner,  a  gypsy  woman,  surrendered  to  take  her  trial  uiK)n  a 
charge  of  stealing  £10  9s.  4c?.,  and  various  articles,  the  property  of 
John  Prior,  at  Witne}'^,  on  the  13th  of  January,  1859. 

It  had  been  usual,  on  this  circuit,  to  charge  offences  of  this  nature 
as  obtaining  mone}-  by  false  pretences  ;  but  on  this  occasion,  in  defer- 
ence to  a  suggestion  thrown  out  by  Crompton,  J.,  in  addressing  the  grand 
jury,  the  offence  was  charged  as  one  of  larceny',  as  consisting  in  obtain- 
ing possession  of  the  goods  by  a  trick  or  fraud. 

R.  Sawyer  appeared  for  the  prosecution. 

Griffits  defended  the  prisoner. 

The  prisoner  was  a  gypsy  woman  who  had  succeeded  in  getting  a 

J  Ace.  Rex  I".  Scmple,  I-each,  691  ;  St.ate  i'.  Woodruff,  47  Kas.  151  ;  .Justices  v.  People. 
90  N.  Y.  12  ;  St.ate  v.  Gurman,  2  N.  &  McC.  90 ;  Starkie  v.  Cm..  7  Lei^h,  7.'")2.  Co„tra 
Felter  v.  State,  9  Yerg.  397 ;  but  .see  Defrese  v.  State,  3  Ileisk.  5.} ;  HoU  v.  State,  6 
Baxt.  522  (stotutory).  —  Ed. 


652  KEGINA   V.    BUNCE.  [CHAP.  XIIL 

large  amount  of  property  from  the  wife  of  the  prosecutor,  by  pretend- 
ing that  she  possessed  supernatural  powers  and  was  able  to  procure 
for  her  dupe  the  sum  of  £170.  On  the  12th  of  January  last,  the  pris- 
oner went  to  the  house  of  the  prosecutor  (who  was  out),  saw  his  wife, 
and  addressed  her,  saying,  "  Mrs.  Prior,  you  are  looking  very  ill.  I 
have  got  something  to  tell  you.  There  is  some  property  left  for  you 
that  you  have  been  cheated  out  of,  and  I  can  get  it  for  you."  The 
prisoner  then  said  that  she  had  got  a  book,  and  she  could  raise  the 
spirits  and  lay  them  if  Mrs.  Prior  would  put  half  a  crown  on  a  certain 
spot  in  the  book  which  she  pointed  out.  Mrs.  Prior  said  to  the  pris- 
oner that  she  had  heard  of  such  things,  and  she  thought  that  spirits 
could  be  raised,  and  was  induced  to  put  some  money  in  the  book. 
The  prisoner  went  away,  and  returned  the  next  da}',  and  said  she  had 
been  working  all  night,  and  that  her  husband's  money  would  not  do, 
and  she  must  have  sovereigns ;  and  she  then  required  her  to  give  her 
all  the  money  she  had  got,  and  promised  she  would  bring  it  back  the 
next  Monda}',  and  also  the  sum  of  £170,  which  she  said  belonged  to 
her.  On  these  representations,  the  wife  gave  her  all  the  money  she 
could  get,  amounting  to  £10  9s.  4o?.  Mrs.  Prior,  who  appeared  to  be 
a  ver}-  nervous  woman,  and  afraid,  even  now,  to  look  at  the  prisoner 
in  the  dock,  said  she  was  so  frightened  at  what  the  prisoner  told  her, 
that  she  felt  she  must  go  and  get  the  monej'  she  wanted,  and  that  she 
let  her  have  it  because  she  believed  from  what  she  said  she  could  do 
her  good  or  evil  and  was  so  afraid  of  her.  When  Mrs.  Prior  gave  the 
prisoner  the  money,  she  required  a  shift  to  wrap  the  money  up  in,  and 
also  Mrs.  Prior's  shawl.  These  were  given  her,  on  her  promise  to 
return  them  on  the  Monday.  The  prisoner  then  wanted  a  cloth  to 
fasten  it  all  up  in,  saying  she  must  bury  it.  This  was  given,  and  also 
Mrs.  Prior's  gold  wedding-ring,  a  silver  thimble,  a  brass  ring,  and  five 
old  silver  coins,  the  prisoner  saying  she  must  have  everything  Mrs. 
Prior  had  got  that  was  valuable.  All  these  things  were  given  to  the 
prisoner  on  l\er  promise  to  bring  them  all  back  on  the  Monda}',  to- 
gether with  the  £170,  and  to  have  a  cup  of  tea.  The  prisoner  was  to 
have  £5  for  her  trouble.  She  never  returned,  and  was  taken  into  cus- 
tody, on  the  12th  February,  with  Mrs.  Prior's  shawl  upon  her.  On  her 
cross-examination,  Mrs.  Prior  said  the  prisoner  always  came  when  her 
husband  was  out,  and  that  she  had  never  told  him  anything  about  it. 
A  friend  of  the  prisoner's  had  since  returned  £5  to  the  prosecutor,  and 
had  promised  £3  more. 

G-riffits  submitted  that  there  was  no  case  for  the  jury. 

Chaknell,  B.,  after  consulting  Crompton,  J.,  ruled  that  there  was. 

Griffits  {to  the  jury)  contended  there  was  nothing  to  show  that  she 
had  got  possession  of  the  goods  with  a  felonious  intent,  but  only  with  a 
view  to  practice  her  art  as  a  witch,  in  which  the  prosecutrix,  like  many 
other  people,  was  foolish  enough  to  believe,  and  possibly  the  prisoneiL' 
may  have  believed.  And  if  this  was  the  original  intention,  then, 
although  it  was  afterwards  altered,  there  would  be  no  larceny. 


SECT.  IV.]  SMITH   V.    PEOPLE.  653 

CiiANNELL,  B.,  to  the  jury.  It  is  for  you  to  say  whether  or  not  the 
prisoner  obtained  possi'ssion  of  the  goods  with  a  felonious  intc-nt.  If 
the  original  intention  was  as  suggested,  there  wouUi  be  no  hireeny  ;  but 
if  it  was  a  mere  trick  to  get  the  goods  with  no  intention  t<j  return  Iheni 
it  would  be  larceny.^  Verdict  guilty. 


^ 


SMITH   V.   PEOPLE. 

Court  of  Appeals  of  New  Youk.     1873. 

[Reported  53  New  York,  111.] 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  first 
judicial  department  to  review  judgment,  allirmiug  judguu-nt  of  the 
Court  of  General  Sessions  in  and  for  the  city  and  county  of  New  York, 
entered  upon  a  verdict  convicting  plaintiff  in  error  of  the  crime  of 
grand  larceny. 

Upon  the  19th  day  of  July,  1872,  the  plaintiff  in  error  called  upon 
one  Sarah  March  and  informed  her  that  her  husband,  Cliarles  March, 
was  arrested  and  locked  up  on  a  charge  of  striking  a  man  over  the  head 
with  a  chair,  and  that  her  husband  had  sent  him  to  her  to  get  some 
money,  twelve  dollars,  and  unless  she  sent  it  he  would  be  locked  up  all 
night.  Not  having  an}-  money,  and,  upon  the  solicitation  of  the  pri- 
soner, believing  his  statement  to  be  true,  she  gave  him  a  watch,  chain, 
and  a  locket  or  cross,  and  two  dollars  in  mone}',  belonging  to  her 
husband,  which  propert}'  he  was  to  pawn  and  give  the  ticket  and  money 
to  her  husband.  The  property  was  given  to  him  an<l  he  left.  The 
statement  of  the  prisoner  was  false.  Charles  March,  the  husband, 
never  had  been  arrested,  never  sent  hira  for  any  money,  and  did  not 
know  him.  The  plaintiff  in  error  appropriated  the  property  so  obtained 
to  his  own  use. 

The  court  charged  the  jur}',  in  substance,  that  if  they  believed  the 
evidence  of  the  prosecution,  and  that  the  prisoner  at  the  time  of  the 
taking  had  the  felonious  intent  to  appropriate  the  property,  it  was 
larceny,  to  which  the  prisoner's  counsel  excepted.  The  jury  rendered 
a  verdict  of  guilty.'' 

William  F.  Kintzing^  for  the  plaintiff  in  error. 

Menjamin  K.  Phelps,  for  the  defendants  in  error. 

Allen,  J.  The  accused  obtained  the  custody  of  the  chattels  and 
money  of  the  prosecutor  from  his  wife  by  a  fraudulent  device  and  trick, 
and  for  a  special  purpose,  connected  with  the  falsely  represented 
necessities  of  the  owner,  with  the  felonious  intent  to  appropriate  the 
same  to  his  own  use.     He  did  not  pawn  or  pledge  the  gootls,  as  be 

1  See  Cantwell  v.  Peo.  (111.).  28  N.  E.  964.  —  Ed. 

2  Arguments  of  counsel  are  omitted. 


654 


SMITH   V.   PEOPLE. 


[chap.  XIII. 


\ 


r 


J 


r 


proposed  to  do,  but  did  appropriate  the  same  to  his  own  use,  in 
pursuance  of  the  felonious  intent  with  which  he  received  them. 
This  constitutes  the  crime  of  larceny.  The  owner  did  not  part  with 
the  property  in  the  chattels,  or  transfer  the  legal  possession.  The  ac- 
cused had  merel}'  the  custod}' ;  the  possession  and  ovvnership  remain- 
ing in  the  original  proprietor.  The  proposition  is  elementary  that 
larceny  may  be  committed  of  goods  obtained  from  the  owner  l)y 
delivery,  if  it  be  done  animo  furayidi.  Per  Co  wen,  J.,  Gary  v. 
Hotailing,  1  Hill,  311 ;  Am.  Grim.  Law,  by  Wliarton,  §  1847,  et  seq.  ; 
Reg.  V.  Smith,  1  C.  «&  K.  423  ;  Reg.  y.  Beaman,  1  C.  &  IM.  595  ;  Reg. 
V.  Evans,  id.  632. 

The  rule  is,  that  when  the  delivery  of  goods  is  made  for  a  certain 
special  and  particular  purpose,  the  possession  is  still  supposed  to  reside, 
not  parted  with,  in  tiie  first  proprietor.  It  is  stated  that  if  a  watch- 
maker steal  a  watch  delivered  him  to  clean,  or  if  a  person  steals  clothes 
deUvered  for  the  purpose  of  being  washed,  or  guineas  delivered  for  the 
purpose  of  being  changed  into  half  guineas,  or  a  watch  delivered  for 
the  purpose  of  being  pawned,  the  goods  have  been  thought  to  remain 
in  the  possession  of  the  proprietor,  and  the  taking  them  away  held  to 
be  a  felony.  1  Hawk.  P.  G.  33,  §  10 ;  2  Russell  on  Grimes,  22.  A 
distinction  is  made  between  a  bare  charge  or  special  use  of  the  goods, 
and  a  general  bailment ;  and  it  is  not  larceny  if  the  owner  intends 
to  part  with  the  property,  and  deliver  the  possession  absoluteh', 
although  he  has  been  induced  to  part  with  the  goods  by  fraudulent 
means.  If  by  trick  or  artifice  the  owner  of  propert}'  is  induced  to  part 
with  the  custod}'  or  naked  possession  to  one  who  receives  the  property 
animo  furandi^  the  owner  still  meaning  to  retain  the  right  of  property, 
the  taking  will  be  larceny' ;  but  if  the  owner  part  with  not  onl}-  the 
possession,  but  the  right  of  property  also,  the  offence  of  the  party 
obtaining  them  will  not  be  larceny,  but  that  of  obtaining  goods  by  false 
pretences.  Ross  v.  People,  5  Hill,  294;  Lewer  v.  Gommonwealth,  15 
S.  &  R.  93  ;  2  Russell  on  Grimes,  28.  Here  the  jury  have  found  the 
intent  to  steal  at  the  time  of  taking,  which  is  all  that  is  required  to 
constitute  larceny,  where  the  mere  possession  is  obtained  hy  fraud  or 
trick.  Wilson  v.  People,  39  N.  Y.  459  ;  People  v.  Call,  1  Den. 
120;  People  v.  McDonald,  43  N.  Y.  61. 

The  conviction  was  right,  and  the  judgment  must  be  affirmed. 

All  concur.  Judgment  affirmed} 


1  Ace.  Soltau  V.  Gerdau,  119  N.  Y.  380;  State  v.  McRae,  111  N.  C.  665;  State  v. 
Lindenthall,  5  Rich.  237. —Ed. 


SECT.  Y.  ]  REGINA  V.    KODINS.  655 

SFXTION  V. 

Transfer  of  Property. 

REGINA   V.   ROBINS. 
Crown  Cask  Rksekyeu.     1854. 

[Reported  Deardy  V.  C.  418.] 

The  following  case  was  reserved  for  the  opinion  of  the  Court  of 
Criminal  Appeal,  by  W.  H.  Bodkin,  Esq.,  sitting  for  the  Asai-stant 
Judge  of  the  Middlesex  Sessions. 

Jolin  Robins  was  tried  at  the  Middlesex  Sessions,  in  September, 
1854,  upon  an  indictment  which  charged  him  with  stealing  five  quar- 
ters of  wheat,  the  property  of  his  masters,  George  Swaiiie  and 
another. 

The  wheat  in  question  was  not  the  property  of  the  prosecutors,  but 
part  of  a  large  quantit}'  consigned  to  their  care  and  deposited  at  one  of 
their  storehouses.  This  storehouse  was  in  the  care  of  Thomas  East- 
wick,  a  servant  of  the  prosecutors,  who  had  authority  to  deliver  the 
wheat  onl}'  on  the  orders  of  the  prosecutors,  or  of  a  person  named 
Callow,  who  was  their  managing  clerk. 

It  was  proved  that  on  the  24 Lh  of  June  the  prisoner,  who  was  a  ser- 
vant of  tlie  prosecutors  at  another  storehouse,  came  to  the  storehouse 
in  question  accompanied  by  a  man  with  a  horse  and  cart,  and  obtained 
the  key  of  the  storehouse  from  Eastwick  by  representing  that  he,  the 
prisoner,  had  been  sent  by  the  managing  clerk  Callow  for  five  quar- 
ters of  wheat,  which  he  was  to  carry  to  the  Brighton  Railway.  East- 
wick, knowing  the  prisoner  and  believing  his  statement,  allowed  the 
wheat  to  be  removed,  the  pri-soner  assisting  to  put  it  into  the  cart,  in 
which  it  was  conveyed  from  the  prosecutors'  premises,  the  prisoner 
going  with  it.  It  was  also  proved  that  Callow  had  given  no  such  au- 
thorit}',  the  prisoner's  statement  being  entirely  false,  and  that  the  wheat 
was  not  taken  to  the  Brighton  Railway,  but  disposed  of,  with  the 
privity  of  the  prisoner,  by  other  parties  who  had  been  associated  with 
him  in  the  commission  of  the  offence. 

The  counsel  for  the  prisoner  contended  that  the  wheat  was  obtained 
by  false  pretences,  but  the  jur^'  were  directed,  if  they  believed  the 
facts,  that  the  offence  amounted  to  larceny,  and  they  found  the  pris- 
oner guilt}'  of  that  offence.  The  prisoner  was  sentenced  to  twelve 
months'  imprisonment,  and  is  now  confined  in  the  House  of  Correction 
at  Coldbath  Fields  in  execution  of  that  sentence.  I  have  to  ask  this 
Honorable  Court,  whether  the  verdict  was  right  in  point  of  law. 

This  case  was  argued  on  the  11th  of  November,  18.')4,  before  Jervis, 
C.  J.,  Alderson,  B.,  Coleridge,  J.,  Martin,  B.,  and  Crowdcr,  J. 


656  KEGINA  V.   ROBINS.  [CHAP.  XHI. 

Metcalfe,  for  the  prisoner.  In  this  case  the  prisoner  obtained  the 
wheat  b}-  means  of  a  false  pretence,  and  was  not  guilt}'  of  larceny. 
The  general  rule  is,  that  in  larceny  the  property  is  not  parted  with,  and 
in  false  pretences  it  is.  Here  the  prosecutor  parted  with  the  property 
in  the  wheat. 

Ai.DEKSON,  B.  It  was  delivered  to  the  prisoner  for  a  special  purpose, 
namely,  to  be  taken  to  the  Brighton  Railway. 

Jervis,  C.  J.  He  gets  the  key  by  a  false  pretence,  and  commits  a 
larceny-  of  the  wheat. 

Metcalfe.  Eastwick  had  the  sole  charge  of  the  wheat ;  and  although 
it  was  not  delivered  to  the  prisoner  by  the  hand  of  the  master,  the 
delivery  by  Eastwick  must  be  taken  to  be  a  delivery  by  the  master. 
The  decision  in  Regina  v.  Barnes,  2  Den.  C.  C.  59,  is  in  favor  of  this 
proposition.  There  the  chief  clerk  of  the  prisoner's  master,  on  the 
production  by  the  prisoner  of  a  ticket  containing  a  statement  of  a  pur- 
chase which,  if  it  had  been  made,  would  have  entitled  the  prisoner  to 
receive  25.  So?.,  but  which  purchase  had  not  in  fact  been  made,  paid 
the  prisoner  the  2s.  3d.,  and  it  was  held  that  the  prisoner  was  not  in- 
dictable for  larceny,  but  for  obtaining  mone}-  nnder  false  pretences. 

Alderson,  B.  That  is  simpl}'  the  case  of  one  servant  being  induced 
to  give  the  propert}-  of  the  master  to  another  servant  b^'  means  of  a 
false  pretence ;  but  here  the  property  remained  in  Swaine  throughout 
as  bailee.  Suppose  the  prisoner  had  been  really  sent  b}-  Callow  and 
had  not  been  guilty  of  an}'  fraud,  but  on  his  wa}'  to  the  railway  had 
been  robbed  of  the  wheat,  could  not  the  wheat  have  been  laid  in 
Swaine? 

Metcalfe.  Swaine  was  the  bailee  of  the  consignor ;  he  had  only  a 
special  property,  and  that  special  property  he  parted  with  to  the 
prisoner. 

Martin,  B.  For  the  purposes  of  this  case  Swaine  was  the  owner  of 
the  wheat. 

Alderson,  B.  If  the  prisoner  had  told  the  truth,  and,  having 
obtained  the  wheat  without  making  any  false  pretence,  had  subse- 
quently dealt  with  it  as  he  has  done,  he  would  without  doubt  be 
guilty  of  larceny ;  and  can  it  be  said  that  he  is  not  guilty  of  larceny 
simply  because  he  told  a  falsehood? 

Sleigh,  for  the  Crown,  was  not  called  upon. 

Conviction  affirmed.^ 

1  Ace.  Reg.  V.  Webb,  5  Cox  C.  C.  154;  State  v.  McCartey,  17  Minn.  76.  See  Rex 
V.  Jackson,  1  Moo.  C.  C.  119.  — Ed. 


SECT.  V.J  KEGINA  V.  lutle.  657 


REGINA   V.   LITTLE. 
Centiial  Criminal  Colkt,     18G7. 

[Reported  10  Cox  C.  C.  559. J 

George  Cohen  Little  ami  William  Eustace  were  charged  with 
stealing  27G  yards  of  carpet,  the  prui)(-Tty  of  lUe  Midland  Uail\>ay 
Coinpanj'. 

Three  bales  of  carpet  were  entrusted  to  Froome,  a  carman  iti  the 
service  of  the  Midland  Railway  Company,  for  delivery  U)  Kastcn  it 
Co.,  Addle  Street  From  someliiing  Froome  heard  in  Addle  Street  he 
went  to  7  Philip  Lane,  which  leads  out  of  Adille  Street.  There  waa  no 
name  up  at  No.  7,  but  it  ai)peared  as  if  it  had  been  newly  done  up. 
At  No.  7  Froome  saw  the  prisoner  Little  and  asked  him  whether  that 
was  Easten's  of  Addle  Street.  Little  said,  "  Yes."  Froome  told  him 
he  had  three  trusses  of  carpet,  and  showed  him  the  way-bill,  which  indi- 
cated that  three  bales  marked  E.  959-61  were  to  be  delivered  to  Kius- 
ten  &  Co.  of  Addle  Street.  Little  told  him  to  bring  them  in,  and  they 
were  brought  in  and  signed  for  by  "  T.  C.  Little."  Eustace  appeared 
to  have  rented  the  premises  on  which  the  goods  were  left,  and  became 
acquainted  with  the  fact  of  their  being  in  his  liouse  shortly  after  they 
were  so  left,  and  according  to  his  own  account  had  sold  them  to  a  man 
from  whom  he  had  received  no  money,  although  l)y  his  own  statements 
to  a  witness  he  had  said  they  had  been  left  at  this  place  in  mistake,  and 
did  not  belong  to  him. 

Sleigh,  on  behalf  of  Eustace,  submitted  that  there  was  no  case  of 
larcen}'  made  out,  —  the  Railway  Company,  in  whom  the  property  was 
laid,  having  parted  not  onl}'  with  the  possession,  but  also  with  the  prop- 
erty in  the  goods,  and  no  trick  having  been  shown  to  have  been  used 
b^-  Eustace  in  order  to  get  possession  of  them. 

Poland  contended  that  the  liailway  Compan}',  having  authority  to 
deliver  to  Fasten  &  Co.,  had  no  power  to  part  with  the  property  in  the 
goods  to  an}'  other  parties ;  that  the  mistake  of  the  carman  in  leaving 
them  at  the  wrong  premises  did  not  deprive  the  company  of  their  prop- 
ert}'  in  them  ;  and  that  the  subsequent  conversion  of  them  by  Eustace 
to  his  own  purposes  was  in  fact  a  larceny  of  the  goods  of  the  company, 
just  as  much  as  if  he  had  taken  them  out  of  the  cart  himself. 

Besley,  on  the  same  side,  argued  that  as  the  goods  came  into  the 
possession  of  Little,  he  by  accepting  possession  of  them  might  be 
deemed  a  bailee  for  the  owner,  and  that  directly  Eustace  became  ac- 
quainted with  the  circumstances  and  co-operated  with  him  he  w.as  neces- 
sary with  him  as  bailee  ;  and  then  if,  contrary  to  that  baihnent,  they 
jointly  converted  the  goods  to  their  own  purposes,  a  case  of  larceny 
would  be  established.   He  referred  to  Regina  v.  Robson,  9  Cox  C  C.  29. 

The  Recorder  said  he  should  leave  the  case  to  the  jury,  not  u|K)n 
the  ground  that  the  prisoners  were  bailees,  but  that  the  property  in  the 

42 


G58  KEX  V.   MOORE.  [CHAP.  XIIL 

goods  had  not  been  parted  with.  The  carman  had  the  limited  author- 
ity to  part  with  them  to  Easteu  &  Co.  only,  and  by  leaving  them  in 
mistake  the  property  was  not  really  parted  with. 

Guilty.^ 


REX  V.   MOORE. 
Crown  Case  Reserved.     1784. 

[Reported  Leach  (4<A  ed.),  314.] 

This  was  a  case  reserved  for  tlie  opinion  of  the  twelve  judges  b}-  Mr. 
Sergeant  Adair,  Recorder,  at  the  Old  Bailey,  in  April  Session,  1784, 
upon  the  trial  of  an  indictment  for  stealing  twenty  guineas,  and  four 
pieces  of  foreign  gold  coin  called  doubloons,  the  property  of  John 
Field,  in  the  dwelling-house  of  John  Brown. 

The  material  circumstances  of  this  case,  as  they  appeared  in  evidence, 
were  as  follow :  The  prosecutor,  John  Field,  a  soldier,  just  returned 
from  the  war  in  America,  was  walking  along  James  Street,  Covent 
Garden,  when  a  stranger  joined  company  with  him.  As  they  walked  in 
friendly  conversation  with  each  other  down  Long  Acre,  the  stranger  sud- 
denly stopped  and  picked  up  a  purse  which  was  lying  at  a  door.  After 
they  had  proceeded  about  forty  yards,  "■  Come,"  says  the  stranger,  "  we 
will  go  and  drink  a  pot  of  porter,  and  see  what  we  have  picked  up." 
The  prosecutor  was  persuaded  to  comply ;  and  they  accordingly  went 
into  a  private  room  in  an  adjacent  public  house,  where  the  stranger 
pulled  out  the  purse,  and  from  one  end  of  it  produced  a  receipt,  signed 
"W.  Smith,"  for  £210  "  for  one  brilliant  diamond-cluster  ring,"  and 
from  the  other  end  he  pulled  out  the  ring  itself.  A  conversation 
ensued  upon  the  subject  of  their  good  fortune,  during  which  time  the 
prisoner,  Humphrey  Moore,  entered  the  room ;  and  being  shewed  the 
ring,  he  praised  the  beauty  of  its  lustre,  and  offered  to  settle  the  divi- 
sion of  its  value.  Upon  the  stranger's  lamenting  that  he  had  no  money 
about  him,  the  prisoner  asked  the  prosecutor  if  he  had  any.  The  prose- 
cutor replied  that  he  had  forty  or  fifty  pounds  at  home.  "That  sum 
will  just  do,"  said  the  prisoner.  A  coach  was  immediately  called,  and 
all  three  were  di'iven  to  the  prosecutor's  lodgings  at  Chelsea.  The 
prosecutor  and  the  stranger  went  into  the  house  together,  leaving  the 
prisoner  at  the  Five  Fields.  The  prosecutor  took  his  money  from  his 
bureau,  put  it  into  his  pocket,  and  returned  with  the  stranger  to  a 
public  house  in  the  Five  Fields,  Chelsea,  kept  by  John  Brown,  where 
they  again  met  the  prisoner,  who  said,  "  I  will  give  you  your  share  of 
the  ring,  if  you  will  be  content  till  to-morrow."  The  prosecutor  put 
down  twenty  guineas  and  four  doubloons,  which  the  stranger  took  up, 

1  See  Shipply  v.  People,  86  N.  Y.  375.  —  Ed. 


SECT,  v.]  REX   V.   MOORE.  659 

and  in  return  gave  the  prosecutor  the  ring,  desiring  tliat  he  would 
meet  him  at  the  same  place  on  the  next  morning  at  nine  o'clock,  and 
promising  that  he  would  then  return  the  twenty  guineas  antl  the  four 
lioubloons  to  the  prosecutor,  and  also  one  hundreil  guineas  for  his  share 
of  the  ring.  The  prisoner  and  the  strangt-r  went  away  together.  The 
prosecutor  attended  the  next  morning  pursuant  to  the  appointment, 
but  neither  of  the  parties  came.     The  ring  was  of  a  very  trifling  value. 

It  was  left  with  the  jury  to  consider  whether  the  prisoner  and  the 
other  man  were  not  confederated  together,  for  the  purpose  of  ohtaining 
money  on  pretence  of  sharing  the  value  of  the  ring,  and  whether  he; 
had  not  aided  and  assisted  tlie  other  man  to  obUiin  the  money  by  the 
means  that  were  used  for  that  purpose.  And  the  jury  were  of  opinion 
that  the  prisoner  was  confederating  with  the  person  unknown  for  the 
purpose  of  obtaining  the  money  by  means  of  the  ring,  and  did  therefore 
aid  and  assist  the  person  unknown  in  obtaining  the  twenty  guineas  and 
the  four  doubloons  from  the  prosecutor.  They  accordingly  found  him 
guilt}'  of  stealing,  but  not  in  the  dwelling-house,  subject  to  the  opinion 
of  the  twelve  judges  whether  it  was  felony. 

On  the  first  day  of  Michaelmas  Term,  1784,  all  the  judges,  except 
Lord  Mansfield,  assembled  at  Lord  Loughborough's  chambers  to  con- 
sult upon  this  case  ;  and  in  the  December  Session  following,  Mr.  Jus- 
tice WiLLES  delivered  their  opinion  at  the  Old  Bailey  to  the  following 
effect:  all  the  judges  agreed  that  in  considering  the  nature  of  larceny 
it  was  necessar}'  to  attend  to  the  distinction  between  the  parting 
with  the  possession  only,  and  the  parting  with  the  property  ;  that  in 
the  first  case  it  is  felony,  and  in  the  last  case  it  is  not  Upon  the  cir- 
cumstances of  the  present  case  two  of  the  judges^  were  of  opinion 
that  the  doubloons  were  to  be  considered  as  money,  and  that  the  whole 
was  a  loan  on  the  securit}'  of  the  ring,  which  the  prosecutor  believed  to 
be  of  much  greater  value  than  the  money  he  advanced  on  it,  and  there- 
fore that  he  had  voluntarily  parted  with  the  propertj'  as  well  as  with 
the  possession  of  the  doubloons.  But  nine  of  the  judges  were  clearly 
of  opinion  that  it  was  felon}',  for  they  thought  the  twenty  guineas  and 
the  four  doubloons  were  deposited  in  the  nature  of  a  pledge  till  the  half 
of  the  supposed  value  of  the  ring  was  paid  to  the  prosecutor,  and  not  as 
a  loan  ;  and  therefore  he  had  parted  with  the  possession  only,  and  not 
with  the  property,  —  more  especially  as  to  the  doubloons,  which  he 
clearly  understood  were  to  be  returned  the  next  day  in  specie  ;  and  they 
could  not  distinguish  this  case  from  The  King  r.  Patch  in  this  court  in 
February  Session,  178'2,  and  the  King  v.  Pear,  in  Septemlier  Session, 
1779.  The  majority  of  the  judges,  therefore,  were  of  opinion  that 
this  case  had  been  properly  left  to  the  jury,  and  that  the  prisoner  waa 
guilty  of  felony. 

The  prisoner  was  accordingly  transported. 

^  Lord  LocGHBOROcoH,  and  Skixker,  C  B. 


660  REGINA   V.   PRINCE.  [CHAP.  XIII. 


REX  V.   ATKINSON. 
Crown  Case  Reserved.     1799. 

[Reported  2  East  P.  C.  673.] 

James  William  Atkinson  was  indicted  for  stealing  two  bank-notes, 
the  property  of  William  Dunn,  against  the  statute.  It  appeared  that 
the  prisoner  sent  one  Dale  (to  whom  he  was  unknown)  with  a  letter 
directed  to  Dunn;  bidding  Dale  to  tell  Dunn  that  he  brought  the 
letter  from  Mr.  Broad,  and  to  bring  the  answer  to  him  (the  prisoner) 
in  the  next  street,  where  he  would  wait  for  him.  Dale  accordingly 
carried  to  Dunn  the  letter,  which  was  written  in  the  name  of  Broad, 
a  friend  of  Dunn's,  soliciting  the  loan  of  £3  for  a  few  days,  and 
desiring  that  the  money  might  be  inclosed  back  in  the  letter  imme- 
diately. Dunn  thereupon  sent  the  bank-notes  in  question,  inclosed  in 
a  letter  directed  to  Broad,  and  delivered  the  same  to  Dale,  who  deliv- 
ered them  to  the  prisoner  as  he  was  first  ordered.  The  letter  turned 
out  to  be  an  imposition.  It  was  objected  at  the  trial  that  this  was  no 
felony,  because  the  absolute  dominion  of  the  property  was  parted 
with  by  the  owner,  though  induced  thereto  by  means  of  a  false  and 
fraudulent  pretence.  And  on  reference  to  the  judges  after  conviction, 
all  present  held  that  it  was  no  felony,  on  the  ground  that  the  property 
was  intended  to  pass  by  the  delivery  of  the  owner  ;  and  that  this  case 
came  within  the  Stat.  33  H.  8.  c.  1,  against  false  tokens,  which  partic- 
ularly speaks  of  counterfeit  letters.^ 


REGINA  V.   PRINCE. 
Crown  Case  Reserved.     1868. 

[Reported  Law  Reports  1  Crown  Cases  Reserved,  150.] 

The  following  case  was  stated  by  the  Common  Sergeant :  — 
.  The  prisoner  was  tried  before  me  at  the  August  session  of  the  Cen- 
tral Criminal  Court  on  an  indictment  charging  him,  in  the  first  count, 
with  stealing  money  to  the  amount  of  £100,  the  property  of  Henry 
Allen  ;  in  the  second  count,  with  receiving  the  same,  knowing  it  to 
have  been  stolen  ;  and  in  two  other  counts  the  ownership  of  the  money 
was  laid  in  the  London  and  Westminster  Bank. 

It  appeared  in  evidence  that  the  prosecutor,  Henry  Allen,  had  paid 
moneys  amounting  to  £900  into  the  London  and  Westminster  Bank 
on  a  deposit  account  in  his  name,  and  on  the  27th  of  April,  1868,  that 

1  Ace.  Rex  V.  Colman,  Leach  (4th  ed.)  303  n. ;  Kelly  v.  People,  6  Hun,  509 ; 
Kellogg  V.  State,  26  Oh.  St.  15.    See  Reg.  v.  Middleton,  L.  R.  2  C.  C.  38,  ante.  — Ed. 


SECT,  v.]  KEGINA    V.    PRINCI-l  GtJl 

Bum  was  standing  to  his  credit  at  that  bank.  On  that  day  the  wife  of 
Henry  Allen  presentod  at  the  hank  a  forged  ortler  purporting  Uj  be 
the  order  of  the  said  Henry  Allen,  for  payment  of  the  deposit,  and  th« 
casiiier  at  the  bank,  believing  the  authority  to  be  genuine,  paid  to 
her  the  deposit  and  interest  in  eiglit  bank  notes  of -ClOU  eaeh,  and  oUitr 
notes.  Among  the  notes  of  £1UU  was  one  nuniliered  72,7'jy.  dated  the 
19th  of  November,  18G7. 

On  the  first  of  July,  1868,  the  wife  of  Henry  Alien  left  him  and 
his  house,  and  she  and  the  prisoner  were  shortly  afterwards  found  on 
board  a  steamboat  at  Queenstown  on  its  way  from  Liverj)ool  to  New 
York,  passing  as  ]\Ir.  and  Mrs.  I'rince,  IMrs.  Allen  tiien  having  in  her 
possession  nearly  all  the  remainder  of  the  notes  obtained  from  the 
bank.  The  note  for  £100,  No.  72,799,  was  proved  to  have  been  paid 
away  b}'  the  prisoner  in  payment  for  some  sheep  in  Ma}',  18G8,  and 
he  said  he  had  it  from  Mrs.  Allen. 

Upon  this  evidence  it  was  ol)jected  by  prisoner's  cotmsel  that  the 
counts  alleging  the  property  to  be  in  Henry  Allen  must  fail,  as  the  note 
had  never  been  in  his  possession  ;  and  that  as  to  the  other  counts  the 
evidence  did  not  show  any  larceny  of  the  note  from  the  bank  by  the 
wife,  but  rather  an  obtaining  b}-  forgery  or  false  pretences  by  her,  and 
that  the  receipt  b}'  the  prisoner  from  her  was  not  a  receipt  of  stolen 
property.  I  held,  however,  that  the  forged  order  presented  by  the  wife 
was  under  the  circumstances  a  mere  mode  of  committing  a  larceny 
against  the  London  and  Westminster  Bank,  and  that  the  prisoner  was 
liable  to  be  convicted  on  the  fourth  count. 

The  jury  found  the  prisoner  guilty  on  that  count  and  I  respited  judg- 
ment and  reserved  for  the  consideration  of  the  court  the  question 
whether  the  obtaining  the  note  from  the  bank  by  Mrs.  Allen  under  the 
circumstances  stated  was  a  larceny  by  her ;  if  not,  the  conviction  must 
be  reversed.^ 

BoviLL,  C.  J.  I  am  of  opinion  that  this  conviction  cannot  be  sus- 
tained. The  distinction  between  larceny  and  false  pretences  is  mate- 
rial. In  larceny  the  taking  must  be  against  the  will  of  the  owner.  That 
is  of  the  essence  of  the  olTence.  The  cases  cited  by  Mr.  Collins  on  be- 
half of  the  prisoner  are  clear  and  distinct  upon  this  point,  showin^,'  that 
the  obtaining  of  property  from  its  owner  or  his  servant  absolutely  au- 
thorized to  deal  with  it  by  false  pretences  will  not  amount  to  larceny. 
The  cases  cited  on  the  other  side  are  cases  where  the  servant  had  only 
a  limited  authority  from  his  master.  Here,  however,  it  seems  to  me 
that  the  bank  clerk  had  a  general  authority  to  part  with  both  the  prop- 
ertv  in  and  possession  of  his  master's  money  on  receiving  what  he  be- 
lieved to  be  a  genuine  order,  and  that  as  he  did  so  part  with  both  tlie 
property  in  and  possession  of  the  note  in  question  the  offence  commit- 
ted by  Mrs.  Allen  falls  within  the  cases  which  make  it  a  false  pretence 
and  not  a  larceny,  and  therefore  the  prisoner  cannot  be  couvicted  of 
knowingly  receiving  a  stolen  note. 

1  Arguments  of  counsel  are  omitted. 


662  REGINA   V.   PRINCE.  [CHAP.  XIII. 

Chankell,  B.  I  am  of  the  same  opinion.  The  cases  cited  on  one 
side  and  the  other  are  distinguishable  on  the  ground  that  in  one  class 
of  cases  the  servant  had  a  general  authority  to  deal  with  his  master's 
property,  and  in  the  other  class  merelj'  a  special  or  limited  authority. 
If  the  bank  clerk  here  had  received  a  genuine  order  he  would  have  paid 
the  money  for  his  master  and  parted  with  the  property,  and  the  trans- 
action would  have  really  been  what  it  purported  to  be.  If,  however, 
the  clerk  makes  a  mistake  as  to  the  genuineness  of  a  signature,  never- 
theless he  has  authority  to  decide  that  point ;  and  if  he  pa^-s  money  on 
a  forged  order  the  property'  therein  passes  from  the  master  and  cannot 
be  said  to  have  been  stolen. 

Byles,  J.  I  am  of  the  same  opinion.  I  would  merely  say  that  I 
ground  m}-  judgment  purel}'  on  authorit}'. 

Blackburn,  J.  I  also  am  of  the  same  opinion.  I  must  sa}- 1  can- 
not but  lament  that  the  law  now  stands  as  it  does.  The  distinction 
drawn  between  larceny  and  false  pretences  —  one  being  made  a  felony 
and  the  other  a  misdemeanor,  and  3'et  the  same  punishment  attached 
to  each  —  seems  to  me,  I  must  confess,  unmeaning  and  mischievous. 
The  distinction  arose  in  former  times,  and  I  lake  it  that  it  was  then  held 
in  favor  of  life  that  in  larceny  the  taking  must  be  against  the  will  of  the 
owner,  larceny  then  being  a  capital  offence.  However,  as  the  law  now 
stands,  if  the  owner  intended  the  property  to  pass,  though  he  would  not 
so  have  intended  had  he  known  the  real  facts,  that  is  sufficient  to  pre- 
vent the  offence  of  obtaining  another's  property-  from  amounting  to 
larceny ;  and  where  the  servant  has  an  authority  co-equal  with  his 
master's  and  parts  with  his  master's  property,  such  property  cannot  be 
said  to  be  stolen  inasmuch  as  the  servant  intends  to  part  with  the 
propert}'  in  it.  If,  however,  the  servant's  authority  is  limited,  then  he 
can  only  part  with  the  possession,  and  not  with  the  property  ;  if  he  is 
tricked  out  of  the  possession  the  offence  so  committed  will  be  larcen}'. 
In  Regina  v.  Longstreeth,  1  Moody,  C.  C.  137,  the  carrier's  servant  had 
no  authority  to  part  with  the  goods  except  to  the  right  consignee.  His 
authority  was  not  generall}^  to  act  in  his  master's  business,  but  limited 
in  that  wav.  The  offence  was  in  that  case  held  to  be  larcen}^  on  that 
ground,  and  this  distinguishes  it  from  the  pawnbroker's  case  Regina  v. 
Jackson,  1  Moody  C.  C.  119,  which  the  same  judges,  or  at  any  rate 
some  of  them,  had  shortly  before  decided.  There  the  servant  from 
whom  the  goods  were  obtained  had  a  general  authority  to  act  for  his 
master,  and  the  person  who  obtained  the  goods  was  held  not  to  be 
guilty  of  larcen}'.  So  in  the  present  case  the  cashier  holds  the  money 
of  the  bank  with  a  general  authority  from  the  bank  to  deal  with  it. 
He  has  authority  to  part  with  it  on  receiving  what  he  believes  to  be  a 
genuine  order.  Of  the  genuineness  he  is  the  judge ;  and  if  under  a 
mistake  he  parts  with  money  he  none  the  less  intends  to  part  with 
the  property  in  it,  and  thus  the  offence  is  not,  according  to  the  cases, 
larceny,  but  an  obtaining  b}'  false  pretences.  The  distinction  is  in- 
Bcrutable  to  my  mind,  but  it  exists  in  the  cases.     There  is  no  statute 


^  SECT,  v.]  REGINA   V.    BUCKMASTER.  663 

J  enabling  a  count  for  larceny  to  be  joined  with  one  for  false  pretences  • 

I  and  as  the  prisoner  was  indicted  for  the  felony  the  conviction  must  be 

iS^         quashed. 

Lush,  J.  I  also  agree  that  the  conviction  must  be  quasljod  I 
ground  my  judgment  on  the  distinction  between  the  ca.ses  which  has 
been  pointed  out.  The  cashier  is  placed  in  the  bank  for  the  vorv  t.ur- 
pose  of  parting  with  the  money  of  the  bank.  He  has  a  general  author- 
ity to  act  for  the  bank,  and  therefore  that  wliich  ho  does,  his  mastors  the 
bankers  do  themselves  through  him.  Conviction  <iua,hcd} 


O 

•^^ 


N<^ 


^ 


REGINA  V.   BUCKMASTER. 
Crown  Case  Reskrved.     1887. 

[Reported  16  Cox  C.  C.  339.] 

This  was  a  case  stated  for  the  opinion  of  the  Court  by  the  Chair- 
man of  the  Court  of  Quarter  Sessions  for  the  County  of  Berks,  which 
was  as  follows  :  — 

1 .  At  the  General  Quarter  Sessions  for  the  County  of  Berks,  held  on 
j          the  27th  day  of  June,  1887,  Walter  Buckraaster  was  tried  before  me 

upon  an  indictment,  omitting  formal  parts,  which  charged  that  he 
did  on  the  9th  day  of  June,  1887,  feloniously  steal,  take,  and  carry 
away  certain  money  of  the  moneys  of  John  Rymer. 

2.  It  was  proved  that  the  prisoner  and  another  man,  at  about  3  p.  m. 
on  the  9th  day  of  June  last,  during  the  Ascot  Race  Meeting,  were  the 
only  persons  standing  upon  a  platform  or  stand  made  to  represent 
"  safes,"  or  iron  safe  chests.  The  words  ''  Griffiths,  the  Safe  Man," 
were  printed  upon  it.  The  stand  was  outside  the  course,  on  a  spot  on 
Ascot  Heath  where  carriages  were  placed,  and  was  not  within  any 
betting  inclosure  or  ring. 

3.  The  prisoner,  with  a  book  in  his  band,  was  calling  out,  "  Two  to 
one  against  the  field,"  just  before  a  race  was  about  to  be  run.  Rymer 
went  up  to  him  and  asked,  "  What  price  Bird  of  Freedom?  "  to  which 
he  replied,  "  Seven  to  one  to  win."  Rymer  then  deposited  five  shillings 
with  Buckmaster,  who  told  him  that  if  the  horse  won  he  (Rymer)  would 
win  thirty-five  shillings  and  get  his  own  five  shillings  back.  He  also 
deposited  another  five  shillings  with  Buckmaster,  who  told  him  that  he 
would  have  fifteen  shillings  back,  including  his  own  five  shillings,  if  the 
horse  was  first  or  second.  The  man  who  was  with  Buckmaster  and 
was  acting  with  him,  received  the  money,  and  the  latter,  with  whom 
all  the  conversation  took  place,  appeared  to  take  down  the  bet  in  his 
book,  and  gave  Rymer  a  card-ticket  with  the  words  "  Griffiths,  Safe 
Man"  upon  it. 

1  See  People  v.  McDonald,  43  N.  Y.  61.  — Ed. 


664  EEGINA  V.    BUCKMASTER.  [CHAP.  XIIL 

4.  While  the  race  was  being  run,  the  prisoner  and  the  other  man 
were  seen  l)y  one  of  the  witnesses  to  walk  quietly  away.  They  were 
followed  for  about  twenty  yards,  and  on  the  witness  at  once  returning, 
the  stand  had  gone.  The  horse  Bird  of  Freedom  won  the  race, 
and  thereupon  Rymer  went  back  to  the  place  where  the  stand  had  been, 
and  he  found  that  the  prisoner  and  the  other  man  had  gone.  He  waited 
there  for  half  an  hour  and  then  left.  Much  later  in  the  afternoon 
Rymer  saw  the  prisoner  on  another  part  of  Ascot  Heath  and  said,  "  I 
want  £2  15s.  from  you."  The  prisoner  said  he  knew  nothing  about  it. 
Upon  being  told  by  Rymer  that  he  would  be  detained,  he  admitted  the 
bet  and  said  he  had  not  the  money,  but  that  he  was  only  the  clerk 
and  could  take  the  prosecutor  to  the  man  who  had  it.  He  was  then 
taken  into  custody,  and  upon  him  were  found  card-tickets  with  the 
words  ''Griffiths,  the  Safe  Man"  upon  them.  It  was  elicited  from 
Rymer  in  cross-examination  that  he  would  have  been  satisfied  if  he  did 
not  receive  back  the  same  particular  coins  he  had  deposited. 

5.  At  the  close  of  the  case  for  the  prosecution,  on  behalf  of  the 
prisoner  it  was  submitted  that  Rymer  having  parted  voluntarily  with 
the  money  there  was  no  evidence  of  larceny  nor  of  any  taking  by 
prisoner,  and  none  of  obtaining  by  false  pretence  or  trick. 

The  learned  chairman  declined  to  withdraw  the  case  from  the  jury, 
but  assented  to  state  this  case.  No  evidence  at  all  was  called  on  the 
part  of  the  prisoner,  and  a  verdict  of  guilty  was  returned. 

The  question  for  the  opinion  of  the  court  was  whether  there  was  any 
evidence  to  be  left  to  the  jury. 

Keith-Frith,  for  the  prisoner.  In  this  case  the  prisoner  might  per- 
haps have  been  convicted  of  obtaining  money  by  false  pretences.  But 
he  has  not  been  indicted  for  false  pretences ;  and  although  upon  an 
indictment  for  false  pretences  a  prisoner  can  be  convicted  of  larceny, 
he  cannot  upon  an  indictment  for  larceny  be  convicted  of  false  pre- 
tences. There  was  no  larceny  here,  because  here  there  was  no  taking 
invito  domino.  [Lord  Coleridge,  C.J. — Why  cannot  it  be  larceny 
by  a  trick?]  In  larceny  by  trick,  although  the  possession  is  parted 
with,  the  ownership  does  not  pass.  But  here  the  prosecutor  did  intend 
to  part  with  the  ownership  of  the  specific  coins  he  gave  the  prisoner, 
and  therefore  the  ownership  In  them  passed.  [Hawkins,  J.  —  No  ;  the 
prosecutor  merely  intended  to  give  the  prisoner  the  coins  as  a  deposit 
to  abide  the  event  of  the  race.]  If  that  were  so,  then  the  person  who 
makes  a  bet  with  a  Geo.  III.  sovereign  can  insist  upon  that  particular 
coin  being  returned  to  him  if  he  wins.  [Smith,  J. — Although  the 
whole  thing  was  a  sham,  do  you  say  that  the  prosecutor  intended  to 
part  with  his  coin  ?]  No  ;  but  if  the  ownership  was  obtained  by  means 
of  a  trick  as  well  as  the  possession,  the  prisoner  ought  to  have  been 
indicted  for  false  pretences.  Here  the  prosecutor  said  he  would  have 
been  satisfied  had  he  not  got  the  same  coins  back  ;  therefore  he  clearly 
intended  that  the  property  in  the  particular  coins  should  pass.  [Haw- 
kins, J.  —  Is  not  Rex  v.  Robson,  Russ.  &  Ry.  413;  an  authority  that  the 


SECT,  v.]  REGINA  V.    BUCKMASTER.  6G5 

property  did  not  pass  under  the  circunisttinces?]  No;  for  there  the 
notes  were  never  intended  to  be  changed  ;  they  were  merely  deposited 
as  a  stake.  Suppose  here  that  liird  of  Freedom  had  lost,  the 
prisoner  would  have  been  entitled  to  keep  the  .O.s.  and  could  not  have 
been  indicted  for  stealing  his  own  property;  and  therefore  as  the 
propeity  passed,  there  could  be  no  larceny,  and  the  couviclion  should 
be  quashed. 

No  counsel  appeared  on  behalf  of  the  prosecution. 
Lord  Colkridgp:,  C.  J.     I  am  of  opinion  that  in  this  case  the  con- 
viction is  right  and  should  be  allinned.     The  only  question  left  to  us 
by  the  learned  chairman  is,  whether  there  was  any  evidence  that  the 
prisoner  had  been  guilty  of    larceny  to  be  left  to  the  jUry.     In  my 
opinion  there  was  abundant  evidence  from  which  the  jury  might  infer 
that  the  prisoner  was  guilty.     On  behalf  of  the  prisoner  it  has  been 
argued  that  there  is  no  doubt  that  the  money  was  intended  to  be  parted 
with,  and  that  not  only  was  the  possession  of  the  money  parted   with 
but  the  property  in  it  was  also  intended  to  be  parted   with  ;  and  that 
therefore,  as  the  property  was  intended  to  be  parted  with,  there  could 
be  no  larceny,  but  only  the  offence  of  obtaining  money  by  false  pre- 
tences ;  and  that,  although  the  prisoner,  if  he  had  been  indicted  for  the 
false  pretences,  could  have  been  convicted  of  larceny,  the  converse  does 
not  hold  good,  and  he  cannot,  upon  an  indictment  for  larceny,  be  con- 
victed of  obtaining  money  by  false  pretences.    To  that  there  seems  to 
V  me  to  be  two  answers  :  the  first,  that,  supposing  there  was  an  intention 
f  on  the  part  of  the  prosecutor  to  part  with  the  property  in  the  coin,  in 
1  order  to  pass  the  property  from  him  to  the  prisoner  there  must  have 
/  been  a  contract  under  which  it  could  pass ;  for  a  change  of  property 
\  could  only  have  taken  place  by  virtue  of  a  contract  of  some  sort,  and 
I  a  contract,  by  the  very  meaning  of  the  word,  must  be  the  bringing 
together   of   two   minds.     Now,  here   there  never  was  any  bringing 
together  of  the  minds  of  the  prosecutor  and  the  prisoner  in  the  shape 
of  a  contract ;  for  supposing  the  prosecutor  to  have  intended  to  have 
parted  with  his  money,  he  only  intended  to  do  so  on  the  assumption 
that  the  prisoner  intended  to  deal  honestly  with  the  money  ;  whereas, 
on  the  contrary,  the  prisoner  never  intended  to  do  that,  but  as  the 
evidence  shows  clearly,  intended  to  do  that  which  the  prosecutor  never 

[for  a  moment  consented  to.  No  contract  ever  existed  therefore  ;  and 
there  is  high  authority  that,  under  such  circumstances,  the  property  in 
the  article  does  not  pass.  In  Rex  v.  Oliver,  Russ.  on  Crimes,  vol.  ii. 
p.  170,  which  was  a  case  tried  before  Wood,  B.,  the  prosecutor  there 
had  a  quantity  of  bank-notes,  which  he  wanted  to  change,  ami  the 
prisoner  offered  to  change  them  for  him.  The  prosecutor  gave  him  the 
bank-notes,  on  which  the  prisoner  decamped,  and  the  prosecutor  never 
got  any  money  in  return.  It  was  argued  that,  as  the  prosecutor  clearly 
intended  to  pass  the  property  in  the  bank-not<?s  to  the  prisoner,  he 
could  not  be  convicted  of  larceny.  But  Wood,  B.,  held  that  tlie  case 
clearly  amounted  to  larceny  if  the  jury  believed  that  the  intention  of 


666  KEGINA  V.   BUCKMASTER.  [CHAP.  XHI. 

the  prisoner  was  to  run  away  with  the  notes  and  never  to  return  with  the 
gold,  and  tliat  whether  the  prisoner  had  at  the  time  the  animus  fur andi 
was  the  sole  point  upon  which  the  question  turned,  for  if  the  prisoner 
had  at  tlie  time  the  animus  furandi,  all  that  had  been  said  respecting 
the  property  having  been  parted  with  by  the  delivery  was  without 
foundation,  as  the  property  in  truth  had  never  been  parted  with  at  all. 
The  learned  judge  further  said  that  "  a  parting  with  the  property  in 
goods  could  only  be  effected  by  contract,  which  required  the  assent  of 
two  minds  ;  but  that  in  this  case  there  was  not  the  assent  of  the  mind, 
either  of  the  prosecutor  or  of  the  prisoner,  the  prosecutor  only  meaning 
to  part  with  his  notes  on  the  faith  of  having  the  gold  in  return,  and  the 
prisoner  never  meaning  to  barter,  but  to  steal."  It  appears  to  me  that 
that  is  not  only  good  sense  but  very  sound  law,  and  it  is  decisive  of 
the  point  raised  here.  I  am  of  opinion  therefore  that  there  is  evidence 
of  larceny  here,  and  that  the  true  view  to  take  of  this  case  is  that  the 
property  did  not  pass.  The  second  answer  appears  to  me  to  be  found  in 
the  case  of  Hex  v.  Robson,  Russ.  &  Ry.  413,  which  is  even  more  like  this 
case  than  the  case  I  have  already  cited.  In  Rex  v.  Robson  the  prose- 
cutor was  induced  by  the  prisoner's  confederates  to  make  a  bet  with  one 
of  them  and  to  part  with  a  number  of  bank-notes  to  another  of  the 
confederates,  who  passed  it  on  to  the  prisoner  to  hold  as  stake-holder. 
The  prosecutor  having  apparently  lost  the  bet,  the  money  was  given  by 
the  prisoner  to  the  confederate  with  whom  the  bet  was  made,  and  he 
went  away.  Upon  these  facts  it  was  held  that,  where  there  is  a  plan 
to  cheat  a  man  of  his  property*  under  color  of  a  bet,  and  he  parts 
with  the  possession  only  to  deposit  the  property  as  a  stake  with  one  of 
the  confederates,  the  taking  b}'  such  confederates  is  felonious.  The 
case  was  tried  by  Bayley,  J.,  who  told  the  jury  that  if  the}'  thought, 
when  the  notes  were  received,  there  was  a  plan  and  concert  between 
the  prisoners  that  the  prosecutor  should  never  have  them  back,  but 
that  they  should  keep  them  for  themselves,  under  the  false  color  and 
pretence  that  the  bet  had  been  won,  he  was  of  opinion  that  in  point  of 
law  it  was  a  felonious  taking  by  all.  The  jury  convicted,  but  the 
learned  judge  thought  proper,  as  the  case  came  very  near  Rex  v. 
Nicholson,  2  East  P.  C.  669,  to  submit  it  to  the  consideration  of  the 
judges,  making  the  distinction  between  the  cases  that  in  Rex  v.  Robson, 
at  the  time  the  prisoners  took  the  prosecutor's  notes,  he  parted  with 
the  possession  only  and  not  the  property ;  and  that  the  property  was 
only  to  pass  eventually,  if  the  confederate  really  won  the  wager ;  and 
that  the  prosecutor  expected  to  have  been  paid  had  the  confederate 
guessed  wrongly.  Ten  of  the  judges  considei'ed  the  case  and  held  the 
conviction  right,  because  at  the  time  of  the  taking  the  prosecutor 
parted  only  with  the  possession  of  the  money.  Now,  the  true  view  of 
the  case  here  is  exactly  like  the  view  which  the  judges  took  in  that 
case.  In  this  case  the  prosecutor  deposits  money  with  the  prisoner, 
never  intending  to  part  with  that  money,  but  being  told  that  in  a  certain 
event  he  was  to  have  that  money  and  something  more  added  to  it  given 


SECT.  V."]  EEGINA    V.   BUCKMASTER.  667 

back  to  him.  The  prisoner,  on  the  other  hand,  took  the  money,  never 
intending  to  give  it  back,  and  decanipt-d  with  it.  It  apin-urs  to  nu-, 
therefore,  that  the  possession  only  of  the  money  was  parted  with,  and 
that  the  prosecutor  never  intended  to  part  with  the  property  in  it.  No 
doubt  had  he  had  money  given  back  to  him,  he  would  not  have  inquired 
into  the  question  whether  his  own  'j.s.  came  back  to  him  or  not.  Hut 
that  does  not  affect  the  question  whether,  when  he  placed  the  coins 
in  the  prisoner's  hands,  he  intended  to  pass  the  property  in  llu-in  to  the 
prisoner.  At  all  events  there  was  plenty  of  evidence  fn»m  which 
the  jury  could  find  that  such  was  not  his  intention ;  and  in  my  opinion 
the  conviction  should  be  allirmed. 

Pollock,  B.     I  have  nothing  to  add. 

IManisty,  J.  I  have  very  few  words  to  say.  I  take  it  on  the  autlior- 
ities  cited  by  my  Lord  that  it  is  settled  law  that  if  a  man  parts  with  the 
possession  of  money  but  does  not  intend  to  part  with  the  property  in 
it,  and  the  person  receiving  the  money  intends  at  that  time  U)  steal  the 
money  in  a  certain  event,  that  there  then  is  larceny.  That  is  the 
ground  on  which  I  think  that,  as  in  this  case  the  prosecutor  never 
intended  to  part  with  his  5.s.  except  in  the  event  which  did  not  occur 
and  the  prisoner  never  intended  to  return  the  money,  the  prisoner  was 
guilty  of  larceny. 

Hawkins,  J.  The  only  question  for  our  determination  is,  whetiier 
there  was  any  evidence  to  go  to  the  jury.  I  am  of  opinion  that  there 
was  abundant  evidence.  I  think  the  evidence  pointed  to  this,  that  the 
whole  of  the  prisoner's  conduct  pointed  to  an  original  and  preconcerted 
plan  of  the  prisoner  to  obtain  possession  of  and  keep  the  money  of 
the  prosecutor ;  and  that  the  prosecutor  never  intended  on  such  terms 
to  part  with  the  property  in  his  5s.  I  think  therefore  that  there  was 
abundant  evidence  of  larceny  in  this  case,  and  that  the  conviction  should 
be  alKrmed. 

Smith,  J.  I  think  that  it  is  clear  the  prosecutor  never  intended  to 
part  with  the  property  in  the  5s.  except  on  condition  that  a  bmm  frJe 
bet  was  made.  I  think  also  that  there  is  evidence  that  at  the  time  the 
prosecutor  handed  the  5s.  to  the  prisoner,  the  prisoner  intended  to  keep 
possession  of  the  money,  whether  Bird  of  Freedom  lost  or  won.  He 
therefore  obtained  the  possession  of  the  prosecutor's  money  by  means 
of  a  preconcerted  and  premeditated  fraud  ;  in  other  words,  by  a  trick. 
There  was  therefore  abundant  evidence  of  larceny,  and  in  my  opinion 
the  conviction  should  be  aflirmed.^  Conviction  affirmed. 

1  Stinson  v.  People,  4.3  111.  .307  ;  Grnnson  v.  State,  80  Ind  5.3-3  ;  Miller  v.  Com., 
78  Ky.  1.5  ;  People  v.  Shaw,  ."57  Mich.  40.3;  Loomis  v.  People.  67  N.  Y.  .322.  But  »e« 
Rex  V.  Nicholson,  Leach  (4th  ed.),  610 ;  Reg.  v.  Riley,  1  Cox  C  C.  98.  —  Ed. 


668  BEGIN  A   V.   SOLOMONS.  [CHAP.  XIII. 

REGINA  V.    SOLOMONS. 
Crown  Case  Reserved,     1890. 

[Reported  17  Cox  C.  C.  93.] 

Case  stated  b}'  the  Deputy-chairman  of  the  London  County  Quarter 
Sessions,  as  follows  :  — 

The  above  prisoner  was  tried  before  me  on  the  20th  day  of  Februarj', 

1890,  upon  an  indictment  which  charged  that  he  "  did  on  the  2d  da}-  of 

February,  1890,  feloniously  steal,  take,  and  carry  awaj-  three  shillings 

and  sixpence,   the  property  of  Edward    Davy."      The    second    count 

y*  charged  him  "  with  feloniously  receiving  the  same,  well  knowing  it  was 

f  stolen." 

w  The  prosecutor  Edward  Dav}'  deposed  as  follows  :  — 

^  That  on  the  2d  day  of  February  in  this  3-ear  I  was  near  Aldgate, 

\^^^  when  the  prisoner  came  up  to  me.    At  that  time  there  was  another  man 

standing  a  little  wa^'  off  selling  purses.     The  prisoner  said,  "  I  '11  show 

J'  3-ou  how  the  trick  is  done."     He  then  opened  a  purse  which  he  had  in 

O  his  hand,  and  putting  three  shillings  in  his  other  hand  said,  "  You  see 

•  there  are  three  shillings  there."   I  said,  "Yes."   He  then  dropped  them, 

^  or  appeared  to  do  so,  into  the  purse.     He  then  asked  me  if  I  would 

give  him  one  shilling  for  the  three  shillings  and  the  purse.    I  hesitated, 

but   afterwards   gave  him  a  shilling  for  the  three  shillings  and  the 

purse,  and  put  the  purse  into  my  pocket.     He  then  pulled  out  another 

purse,  and  showing  two  half-crowns  in  his  hand,  put  them,  or  appeared 

to  put  them,  into  the  purse,  and  asked  me  if  I  would  give  him  half  a 

[   js.  crown  for  the  two  half-crowns  and  the  purse.    I  gave  him  half  a  crown. 

\  The  prisoner  then  said,  "  Just  to  show  that  I  am  not  cheating,  and  to 

v>^  let  the  public  see  it,  3'ou  had  better  give  me  one-and-sixpence  for  ni}'- 

-  *^  self,"  which  I  did.     I  then  walked  a  little  distance  awa}-  and  opened 

the  first  purse  which  he  had  said  contained  three  shillings,  and  found 

only  three  halfpence.     In  the  second  purse,  which  was  said  to  contain 

two  half-crowns,  I  found  two  penny  pieces  only. 

In  cross-examination  the  prosecutor  stated  that  the  prisoner  prom- 
ised him  three  shillings  for  one  shilling,  that  he  bought  the  three 
shillings  and  the  purse,  that  he  did  not  buy  on  speculation,  and  that 
he  was  willing  to  take  the  half-crown,  if  the  prisoner  was  willing  to 
part  with  it ;  that  he  never  said  that  he  parted  with  his  money  to  see 
how  the  trick  was  done,  and  that  at  the  time  he  was  on  his  way  to  the 
Tabernacle  to  hear  Mr.  Spurgeon. 

Another  witness,  named  Norfolk,  in  every  particular  corroborated  the 
story,  but  his  evidence  will  be  unnecessary  to  give  in  detail. 

A  constable  named  Burnett  was  also  called,  and  stated  that  he  took 
the  prisoner  into  custody  for  stealing  three  shillings  and  sixpence. 
Prisoner  in  reply  said,  "  Serve  him  right;  more  fool  he  to  buy  them." 
On  being  searched  there  were  found  on  prisoner  seven  purses  and 
eleven  shillings  in  silver.    The  prosecutor  on  being  recalled  stated  that 


I 
i 


^^ 


T 


SECT,  v.]  REGINA   V.    SOLOMONS.  669 

he  did  not  care  for  the  purses,  but  that  he  wanted  the  mone}-  which 
the  prisoner  promised. 

Upon  this  state  of  facts  it  was  argued  by  counsel  for  the  prisoner 
that  the  prisoner  ought  not  to  have  been  indicted  for  larceny-,  because 
the  prosecutor  volunUirily  parteil  with  his  money,  both  the  possession 
anci  the  ownership,  in  return  for  the  money  which  he  hoped  to  get. 
Cases  were  quoted  in  support  of  this  statement. 

I  overruled  the  objection,  and  pointed  out  that  in  my  opinion  there 
was  no  <Ulference  between  the  present  state  of  facts  and  the  crime  of 
larceny  as  committed  in  the  case  of  "ring  dropping,"  and  that  allhough 
the  indictment  might  have  been  fiamed  for  obtaining  money  by  false 
pretences,  the  present  one  was  ecpially  good  to  maintain  the  crime  (jf 
larceny  by  a  trick. 

The  verdict  was  as  follows:  "  We  find  the  prisoner  guilty  of  '  oIj- 
taining '  the  money  by  a  trick."  I  asked  the  jury  what  they  meant ; 
did  the}'  mean  that  the  prisoner  committed  the  crime  of  larceny  by 
a  trick  as  explained  by  me?  and  they  answered  in  the  alKrmative. 

I,  considering  it  of  importance  to  have  it  determined  whether  this 
form  of  crime  came  within  the  misdemeanor  of  obtaining  goods  by  false 
pretences,  or  whether  it  was  a  felon}^  decided  to  state  this  case,  which 
I  respectfully  do,  for  the  consideration  of  the  Court  of  Criminal 
Appeal. 

The  question  for  the  opinion  of  the  court  is,  whether  I  was  right  in 
holding  and  directing  the  jury  that  the  prisoner  might  be  convicted  of 
larceny  b}'  trick. 

Keith  Frith,  on  behalf  of  the  prisoner.  There  was  no  larcen}-  or 
trick  here,  for  wherever  the  ownership  as  well  as  the  possession  of 
goods  is  parted  with,  there  can  be  no  larcen}'.  The  prisoner  should 
have  been  indicted  for  obtaining  the  coins  by  false  pretences.  Where 
it  has  been  held  that  there  has  been  larcen}*  by  a  trick,  such  as  the 
confidence  trick,  the  possession  and  not  the  ownership  has  been  parted 
with.  [Louu  Coleridge,  C.J.  —  In  Reg.  v.  Kobson  (R.  &  R.  413) 
money  was  deposited  for  a  pretended  bet,  and  it  was  held  to  have 
been  a  case  of  larceny.]  That  was  because  there  the  money  was  only 
deposited,  and  though  the  possession  was  parted  with  the  ownership 
of  the  money  did  not  pass.  In  Reg.  v.  Wilson  (8  C.  &  P.  HI),  the 
ring-dropi)ing  case,  it  was  held  to  be  a  case  of  false  pretences.  [The 
court  here  adjourned,  and  upon  re-assembling  on  the  17th  day  of  May, 
called  upon  the  counsel  for  the  prosecution  to  support  the  conviction.] 

May  nth.  Slade  Butler  for  the  prosecution.  The  question  here 
is,  whether  or  not  this  particular  trick  comes  within  the  definition  of 
larceny.  It  is  said  that  it  does  not,  because  the  prosecutor  intended 
to  part  with  the  ownership  of  the  coins.  But  the  intention  in  the  njind 
of  the  prosecutor  cannot  alter  the  nature  of  the  crime.  The  qno.stion  is 
really  what  was  the  intention  of  the  prisoner  when  he  took  the  coins  ; 
and  there  can  be  no  doubt  but  that  he  intended  to  obtain  them  wrong- 
fully. The  point  is  concluded  bv  the  case  of  Reg.  v.  Middleton  (28  L.  T. 
Rep.  N.  S.  777  ;  12  Cox  C.  C.  417  ;  L.  Rep.  2  C.  C.  R.  38  ;  42  L.  J.  73, 


670  KEGINA  V.   SOLOMONS.  [cHAP.  XUI. 

M.  C).  There  must  be  a  geuuine  contract  in  order  to  pass  the  prop- 
erty, aud  here  there  was  never  an}-  contract.  The  prosecutor  here 
never  intended  to  contract  for  what  lie  obtained.  He  also  cited  Keg.  v. 
Buckmaster  (57  L.  T.  Rep.  N.  S.  720 ;  16  Cox  C.  C.  339  ;  20  Q.  B. 
Div.  182;  57  L.  J.  25,  M.  C). 

LoKi>  CoLEKiDGE,  C.J.  This  casc  is  really  upon  consideration  too 
clear  for  me  to  entertain  any  doubt  about  it.  Of  course  one  hesitates 
to  let  off  a  man  if  he  is  guilty  of  a  gross  fraud,  and  it  is  matter  for 
regret  to  have  to  let  off  a  man  who  is  really  guilty  of  something.  But  as 
long  as  we  have  to  administer  the  law  we  must  do  so  according  to  the 
law  as  it  is.  We  are  not  here  to  make  the  law,  and  by  the  law  of 
England,  though  it  is  enacted  by  24  &  25  Vict.  c.  96,  s.  88,  that  a  man 
indicted  for  false  pretences  shall  not  be  acquitted  if  it  be  proved  that 
he  obtained  the  propert}'  with  stealing  which  he  is  charged  in  any  such 
manner  as  to  amount  in  law  to  larcen}-,  unfortunately  the  statute  stops 
there,  and  does  not  go  on  to  say  that  if  upon  an  indictment  for  larceny 
the  offence  committed  is  shown  to  be  that  of  false  pretences,  the  prisoner 
ma}'  be  found  guilty  of  the  latter  offence.  The  statute  not  having  said 
it,  and  the  one  offence  being  a  misdemeanor  while  the  other  is  a  felony, 
you  cannot  according  to  the  ordinary  principles  of  the  common  law 
convict  for  the  misdemeanor  where  the  prisoner  is  indicted  for  the 
felon}'.  Now  the  law  is  plain  that,  where  the  property  in  an  article  is 
intended  to  be  parted  with,  the  offence  cannot  be  that  of  larceny.  Here 
it  is  quite  clear  that  the  prosecutor  did  intend  to  part  with  the  property 
in  the  piece  of  coin,  and  the  case  is  not  like  any  of  those  cases  in  which 
the  prosecutor  clearly  never  intended  to  part  with  the  property  in  the 
article  alleged  to  have  been  stolen.  Whether  or  not  the  prosecutor 
here  intended  to  part  with  the  property  in  the  coin  does  not  signify  if 
what  he  did  was  in  effect  to  part  with  it  for  something  which  he  did 
not  get.  I  have  already  said  that  you  cannot  convict  of  false  pretences 
upon  an  indictment  for  larcen}',  and  as  the  offence  here  was,  if  any- 
thing, that  of  false  pretences,  and  the  indictment  was  for  larceny,  it 
follows  that  this  man  must  get  off  upon  this  indictment.  I  am  there- 
fore of  opinion  that  this  conviction  must  be  quashed. 

Hawkins,  J.  I  cannot  myself  imagine  a  clearer  illustration  of  the 
difference  between  the  offence  of  false  pretences  and  that  of  larceny 
than  is  afforded  by  this  case.  It  is  perfectly  clear  that  the  prosecutor 
intended  to  part  with  the  property  in  the  coins,  and  that  being  so,  the 
case  is  clearly  not  that  of  larceny.  The  conviction  must  therefore  be 
quashed. 

Mathew,  J.  This  is  a  case  of  false  pretences,  if  anything,  and  not 
of  larceny ;  and  I  am  of  opinion  therefore  that  the  conviction  must  be 
quashed. 

Day,  J.     I  entirely  concur  with  my  Lord. 

Grantham,  J.     I  am  of  the  same  opinion. 

Conviction  quashed.^ 

1  Ace.  Reg.  V  Williams,  7  Cox  0.  C.  355 ;  Reg.  v  McKale,  11  Cox  C.  C.  32;  Reg.  v. 
Twist,  12  Cox  C.  C.  509 ;  Reg.  v.  Hollis,  15  Cox  C.  C.  32.  — Ed. 


SECT,  v.]  EEGINA  V.   liUSSETT.  07  i 


REGINA   V.   RUSSETT. 
Crown  Case  Hkskkvkd,     1m92. 

[Reported  [1892]  2  Q.  B.  312] 

Case  stated  by  the  Deputy-chairman  of  the  Gloucestersbire  Quartei 
Sessions  :  — 

The  prisoner  was  tried  and  convicted  upon  an  indictinent,  cliargin;i 
him  with  having  feloniously  stolen  on  March  2G,  1«'J2,  the  stun  of  £.S 
in  money  of  the  moneys  of  James  lirotherton.  It  ap[)cared  from  the 
facts  proved  in  evidence  that  on  the  day  in  question  the  prosefutoi 
attended  Winchcomb  fair,  where  he  met  the  prisoner,  wlio  offered  to 
sell  him  a  horse  for  £2-4  ;  he  subsequently  agreed  to  purchase  the 
horse  for  £23,  £8  of  which  was  to  be  paid  down,  and  the  remaining 
£15  was  to  be  handed  over  to  the  prisoner  either  as  soon  as  the  pros- 
ecutor was  able  to  obtain  the  loan  of  it  from  some  friend  in  the  fair 
(which  he  expected  to  be  able  to  do)  or  at  the  prosecutor's  house  at 
Little  Hampton,  where  the  prisoner  was  told  to  take  the  horse  if  the 
balance  of  £15  could  not  be  obtained  in  the  fair.  The  prosecutor,  his 
son,  the  prisoner,  and  one  or  two  of  his  companions,  then  went  into  a 
public  house  where  an  agreement  in  the  following  words  was  written 
out  by  one  of  the  prisoner's  companions,  and  signed  by  i)ri.soner  and 
prosecutor :  "  26th  March,  G.  Russett  sell  to  Mr.  James  and  Brother 
[sic]  brown  horse  for  the  sum  of  £23  Qs.  Od.  Mr.  James  and  lirothcr 
pay  the  sum  of  £8,  leaving  balance  due  £15  Os.  Od.  to  be  paid  on 
delivery."  The  signatures  were  written  over  an  ordinary  penny  stamj*. 
The  prosecutor  thereupon  paid  the  prisoner  £8.  The  prosecutor  said 
in  the  course  of  his  evidence  :  "  I  never  expected  to  see  the  £8  back, 
but  to  have  the  horse."  The  prisoner  never  gave  the  prosecutor  an 
opportunity  of  attempting  to  borrow  the  £15,  nor  did  he  ever  take  or 
send  the  horse  to  the  prosecutor's  house  ;  but  he  caused  it  to  be 
removed  from  the  fair  under  circumstances  from  which  the  jury  in- 
ferred that  he  had  never  intended  to  deliver  it. 

It  was  objected  on  behalf  of  the  prisoner  that  there  was  no  evidence 
to  go  to  the  jury,  on  the  ground  that  the  prosecutor  parted  al)solutoly 
with  the  £8,  not  only  with  the  possession  but  with  the  property  in  it ; 
and,  consequently,  that  the  taking  by  the  prisoner  was  not  larceny, 
but  obtaining  money  by  false  pretences,  if  it  was  a  crime  at  all ;  the 
objection  was  overruled.  In  summing  up.  the  Deputy-chairman  directe<i 
the  jury  that  if  they  were  satisfied  from  the  facts  that  the  prisoner 
had  never  intended  to  deliver  the  horse,  but  had  gone  through  the 
form  of  a  bargain  as  a  device  by  which  to  ol)tain  the  prosecutor's 
money,  and  that  the  prosecutor  never  would  have  parted  with  his  £8 
had  he  known  what  was  in  the  prisoner's  mind,  they  should  find  the 
prisoner  guilty  of  larceny. 


672  EEGINA   V.   EUSSETT.  [CHAP.  XIIL 

The  question  for  the  court  was  whether  the  Deputy- chairman  was 
right  in  leaving  the  case  to  the  jury. 

Gwynne  James,  for  the  prisoner.  The  conviction  was  wrong.  The 
only  offence  disclosed  was  that  of  obtaining  money  by  false  pretences. 
There  was  no  evidence  to  go  to  the  jury  upon  a  charge  of  larceny. 
The  property  in  the  money  passed  to  the  prisoner  at  the  time  when  it 
was  handed  to  him  by  the  prosecutor,  who  admittedly  never  expected  to 
see  it  again  ;  the  receipt  given  for  the  money  is  strong  evidence  of  the 
change  of  property.  The  case  is  distinguishable  from  Reg.  v.  Buck- 
master,  20  Q.  B.  D.  182;  for  in  that  case  the  question  was  whether 
the  prosecutor  expected  to  have  his  money  back.  There  is  in  the 
present  case  a  breach  of  contract,  for  which  the  prosecutor  has  a  civil 
remedy,  and  it  is  immaterial  that  the  prisoner  in  making  the  contract 
had  a  fraudulent  intent.  Rex  v.  Harvey,  1  Leach,  467.  For  the  fact 
that  the  contract  was  induced  by  fraud  did  not  render  the  contract 
void,  or  prevent  the  property  from  passing.  Clough  v.  London  and 
North  Western  Ry.  Co.,  Law  Rep.  7  Ex.  at  p.  34.  The  principle  of 
law  is  stated  in  Roscoe's  Criminal  Evidence,  11th  ed.  at  p.  620,  where  it 
is  said  :  "  The  doctrine  is  clearly  established  that,  if  the  owner  intends 
to  part  with  the  property  in  the  goods,  and  in  pursuance  of  such  inten- 
tion delivers  the  goods  to  the  prisoner,  who  takes  them  away,  and  the 
property  becomes  his,  this  is  not  larceny,  even  though  the  prisoner  has 
from  the  first  a  fraudulent  intention." 

Stroud,  for  the  prosecution,  was  not  called  upon. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  this  conviction  must 
be  supported.  The  principle  which  underlies  the  distinction  between 
larceny  and  false  pretences  has  been  laid  down  over  and  over  again, 
and  it  is  useless  for  us  to  cite  cases  where  the  facts  are  not  precisely 
similar  when  the  principle  is  always  the  same.  When  the  question  is 
approached  it  will  be  found  that  all  the  cases,  with  the  possible  excep- 
tion of  Rex  V.  Harvey,  1  Leach,  467,  as  to  which  there  may  be  some 
slight  doubt,  are  not  only  consistent  with,  but  are  illustrations  of,  the 
principle,  which  is  shortly  this :  if  the  possession  of  the  money  or 
goods  said  to  have  been  stolen  has  been  parted  with,  but  the  owner  did 
not  intend  to  part  with  the  property  in  them,  so  that  part  of  the  trans- 
action is  incomplete,  and  the  parting  with  the  possession  has  been 
obtained  by  fraud  —  that  is  larceny.  This  seems  to  me  not  only  good 
law,  but  good  sense,  and  this  principle  underlies  all  the  cases.  If, 
however,  authority  be  wanted,  it  is  to  be  found  in  two  cases  which  we 
could  not  overrule  without  the  very  strongest  reason  for  so  doing :  the 
first  is  Reg  u  McKale,  Law  Rep.  1  C.  C.  125,  where  Kelly,  L.C.B., 
said,  "  The  distinction  between  fraud  and  larceny  is  well  established. 
In  order  to  reduce  the  taking  under  such  circumstances  as  in  the 
present  case  from  larceny  to  fraud,  the  transaction  must  be  complete. 
If  the  transaction  is  not  complete,  if  the  owner  has  not  parted  with 
the  property  in  the  thing,  and  the  accused  has  taken  it  with  a  fraudu- 
lent intent,  that  amounts  to  larceny."     The  distinction,  in  which  I 


SECT,  v.]  REGINA   V.    KUSSETT. 


673 


entirely  concur,  is  there  expressed  in  felicitous  lanjrnage  by  a  very 
higli  authority.  Tlie  other  case  is  that  of  Rvir.  i-.^Hutkniaster,  -JO 
Q.  n.  D.  182,  which  seerns  to  me  directly  in  point;  that  decision  wjis 
grounded  on  Rex  v.  Oliver,  2  Russell  on  Crimes,  170,  an.l  licx  /• 
Robson,  Ru88.  &  Ry.  413,  where  the  same  principle  was  applied,  and 
the  same  conclusion  arrived  at. 

Pollock,  B.  I  agree  in  the  conclusion  at  wliic-h  the  court  has 
arrived,  and  would  add  nothing  to  the  judgment  of  my  Lord  but  that  I 
wish  it  to  be  understood  that  this  case  is  decided  on  a  ground  which 
does  not  interfere  with  the  rule  of  law  which  has  been  so  long 
acted  on:  that  where  the  prosecutor  has  intentionally  parted  with  the 
property  in  his  money  or  goods  as  well  as  with  their  possession  there 
can  be  no  larceny.  My  mind  has  therefore  been  directed  to  the  facts 
of  the  case,  in  order  to  see  whether  the  prosecutor  parted  with  his 
money  in  the  sense  that  he  intended  to  part  with  the  pro[)erty  in  it. 
In  my  opinion,  he  certainly  did  not.  This  was  not  a  case  of  a  payment 
made  on  an  honest  contract  for  the  sale  of  goods,  which  eventually 
may,  from  some  cause,  not  be  delivered,  or  a  contract  for  sale  of  a 
chattel  such  as  in  Rex  v.  Harvey,  I  Leach,  467 ;  from  the  first  the 
prisoner  had  the  studied  intention  of  defrauding  the  prosecutor; 
he  put  forward  the  horse  and  the  contract,  and  the  prosecutor,  believ- 
ing in  his  bona  fides ^  paid  him  £8,  intending  to  complete  the  purchase 
and  settle  up  that  night.  The  prisoner  never  intended  to  part  with  the 
horse,  and  there  was  no  contract  between  the  parties.  The  money 
paid  by  the  prosecutor  was  no  more  than  a  payment  on  account. 

Hawkins,  J.  I  am  entirel}^  of  the  same  opinion.  In  my  judgment 
the  money  was  merely  handed  to  the  prisoner  by  way  of  deposit,  to 
remain  in  his  hands  until  completion  of  the  transaction  by  delivery 
of  the  horse.  He  never  intended,  or  could  have  intended,  that  the 
prisoner  should  take  the  money  and  hold  it,  whether  he  delivered  the 
horse  or  not.  The  idea  is  absurd;  his  intention  was  that  it  should  he 
held  temporarily  by  the  prisoner  until  the  contract  was  completed, 
while  the  prisoner  knew  well  that  the  contract  never  would  be  com- 
pleted, by  delivery  ;  the  latter  therefore  intended  to  keep  and  steal  the 
money.  Altogether,  apart  from  the  cases  and  from  the  principle  whicli 
has  been  so  frequently  enunciated,  I  should  not  have  a  shadow  of 
doubt  that  the  conviction  was  right. 

A.  L.  Smith,  J.  The  question  is  whether  the  prisoner  has  been 
guilty  of  the  offence  of  larceny  by  a  trick  or  that  of  obtaining  money 
by  false  pretences  ;  it  has  been  contended  on  his  behalf  that  he  could 
only  have  been  convicted  on  an  indictm.ont  charging  the  latter  offence  ; 
but  I  cannot  agree  with  that  contention.  The  difference  between  the 
two  offences  is  this :  if  possession  only  of  money  or  goods  is  given, 
and  the  property  is  not  intended  to  pass,  that  may  be  larceny  by  a 
trick ;  the  reason  being  that  there  is  a  taking  of  the  chattel  by  the 
thief  against  the  will  of  the  owner ;  but  if  possession  is  given  and  it 
is  intended  by  the  owner  that  the  property  shall  also  pass,  that  is  not 

43 


674  REX   V.    WILKINSON.  [CHAP.  XIII. 

larceny  by  a  trick,  but  may  be  false  pretences,  because  in  that  case 
there  is  no  taking,  but  a  handing  over  of  the  chattel  by  the  owner. 
This  case,  therefore,  comes  to  be  one  of  fact,  and  we  have  to  see 
whether  there  is  evidence  that,  at  the  time  the  £8  was  handed  over, 
the  prosecutor  intended  to  pass  to  the  prisoner  the  property  in  that 
sura,  as  well  as  to  give  possession,  I  need  only  refer  to  the  contract, 
which  provides  for  payment  of  the  balance  on  delivery  of  the  horse,  to 
shew  how  impossible  it  is  to  read  into  it  an  agreement  to  pay  the  £8 
to  the  prisoner  whether  he  gave  delivery  of  the  horse  or  not ;  it  was 
clearly  only  a  deposit  by  way  of  part  payment  of  the  price  of  the 
horse,  and  there  was  ample  evidence  that  the  prosecutor  never  intended 
to  part  with  the  property  in  the  money  when  he  gave  it  into  the 
prisoner's  possession. 

Wills,  J.  I  am  of  the  same  opinion.  As  far  as  the  prisoner  is 
concerned,  it  is  out  of  the  question  that  he  intended  to  enter  into  a 
binding  contract ;  the  transaction  was  a  mere  sham  on  his  part.  The 
case  is  not  one  to  which  the  doctrine  of  false  pretences  will  apply,  and 
I  agree  with  the  other  members  of  the  court  that  the  conviction  must 
be  affirmed.  Conviction  affirmed} 


SECTION  VI. 
Animus  furandi. 

REX  V.   WILKINSON. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  §•  Ryan,  470.] 

The  prisoners  were  tried  before  Mr.  Justice  Park  (present  Lord 
Chief  Justice  Abbott)  at  the  Old  Bailey  Sessions,  October,  1821,  on 
an  indictment  for  stealing  six  thousand  six  hundred  and  ninety-six 
pounds'  weight  of  nux  vomica,  value  thirty  pounds,  the  property  of 
James  Marsh,  Henry  Coombe,  and  John  Young,  in  a  certain  boat 
belonging  to  them  in  the  port  of  London,  being  a  port  of  entry  and 
discharge. 

It  appeared  in  evidence  that  the  prosecutors  were  lightermen  and 
agents,  and  were  employed  by  a  Mr.  Cooper,  a  merchant,  who  delivered 
them  warrants  properly  filled  up  to  enable  them  to  pass  the  nux 
vomica  through  the  custom  house  for  exportation  to  Amsterdam. 
The  quantity  was  thirty  bales  of  nux  vomica,  consisting  of  seven 
hundred  and  fifty  bags. 

For  exportation  this  commodity  paid  no  duty ;  but  for  home  con- 
sumption there  was  a  duty  of  two  shillings  and  sixpence  on  the  pound 

1  Ace.  People  v.  Rae,  66  Cal.  423.    See  People  v.  Raschke,  73  Cal.  378.  —  Ed. 


SECT.  VI.]  REX   V.    WILKINSON.  675 

weight,  though  the  article  itself  was  not  worth  al)Ove  one  penny  per 
pound. 

Messrs.  Marsh  &  Co.  entered  the  bales  for  a  vessel  al)out  to  sail  to 
Amsterdam,  culled  the  "  York  Merchant,"  then  lying  in  the  Ix>nd()u 
dock  ;  and  having  done  what  was  necessary  delivered  hack  the  cock.-t 
bill  and  warrants  to  C'ooi)er,  considering  hiui  as  tlie  owner,  and  .Marsh 
&  Co.  gave  a  bond  to  (Jovernnient  with  Cooper  under  a  penalty  to  export 
these  goods.  Marsh  &  Co.  were  to  be  paid  for  lighterage  and  for  their 
services. 

After  this  Marsh  &  Co.  employed  the  prisoner  Wilkinson  as  their 
servant,  who  was  a  lighterman  (and  wlio  had  originally  introduced 
Cooper  to  them  to  do  what  was  necessary  respecting  the  nux  vomica), 
to  convey  the  goods  from  Bon  Creek,  where  they  were,  t<j  the  "  York 
Merchant "  at  the  London  docks,  and  lent  their  lx>at  with  the  name 
*' Marsh  &  Co."  upon  it  to  enable  him  so  to  do. 

The  prisoner  Wilkinson  accordingly  went  and  got  the  nux  vomica  by 
an  order  commanding  the  person  who  had  the  possession  of  it  to  de- 
liver it  to  Mr.  John  Cooper.     The  bales  were  marked  C.  4  to  83. 

When  Wilkinson  received  the  cargo,  instead  of  taking  it  to  the  "  York 
Merchant "  he,  one  AYilliam  Marsden,  and  the  other  prisoner,  Joseph 
Marsden,  took  the  boat  to  a  Mr.  Brown's,  a  wharfinger  at  I.ea  Cut  in 
the  county  of  Middlesex,  and  there  unloaded  it  into  a  warehouse  which 
William  Marsden  had  hired  three  weeks  before,  and  which  they  had 
used  once  before.  The  two  prisoners  and  William  Marsden  were 
there  employed  a  long  time  in  unpacking  the  bales,  taking  out  tiie 
nux  vomica,  repacking  it  in  smaller  sacks,  and  sending  it  by  a  wagon 
to  London,  and  refilling  the  marked  bales  with  cinders  and  other 
rubbish  which  they  found  on  the  wharf. 

The  prisoner  Wilkinson  then  put  the  bales  of  cinders,  etc.,  on  board 
the  boat,  took  them  to  the  "York  Merchant,"  hailed  the  vessel,  and 
said  he  had  thirty  bales  of  nux  vomica,  which  were  put  on  board  and 
remained  so  for  two  or  three  days  when  the  searcher  of  the  customs 
discovered  the  fraud. 

Marsh  &  Co.  admitted  that  they  had  not  been  called  on  for  any  du- 
ties nor  sued  upon  the  bond,  though  the  bond  remained  uncancelled. 

The  defence  was,  and  which  Cooper  was  called  to  prove,  that  the 
goods  were  not  his  (Cooper's),  but  that  he  had  at  William  Marsden's 
desire  lent  his  name  to  pass  the  entry ;  and  that  he  had  done  so,  but 
did  not  know  why ;  that  he  did  not  know  it  was  a  smuggling  trans- 
action, or  that  the  object  was  to  cheat  Government  of  the  importation 
duties. 

If  these  were  to  be  considered  as  the  goods  of  Cooper  then  it  shouM 
seem  a  felony  was  committed  upon  them  by  Wilkinson  and  the  two 
Marsdens  by  taking  them  in  the  manner  described  out  of  the  hands  of 
Marsh  &  Co.  without  their  knowledge  or  consent,  who  as  lightermen 
or  carriers  had  a  special  property  in  them,  and  who  were  also  liable  to 
Government  to  see  the  due  exportation  of  them. 


676  KEGINA   V.   WEBSTER.  [CHAP.  XIII. 

Even  if  they  were  the  goods  of  William  Marsden,  who  superintended 
the  shifting  of  them  from  the  bales  to  the  sacks,  the  question  for  the 
judges  to  consider  was  whether  this  can  be  done  by  an  owner  against 
a  special  bailee  who  has  made  himself  responsible  that  a  given  thing 
shall  be  done  with  the  goods,  and  which  the  owner,  without  the  knowl- 
edge or  consent  of  such  bailee,  had  by  a  previous  act  entirely 
prevented. 

The  learned  judge  told  the  jury  that  he  would  reserve  this  point  for 
the  opinion  of  the  judges ;  but  desired  them  to  say  whether  they 
thought  the  general  property  in  the  goods  was  in  Cooper  or  William 
Marsden. 

The  jury  found  the  prisoners  guilty,  and  that  the  property  was  Wil- 
liam Marsden's. 

In  Michaelmas  Term,  1821,  eleven  of  the  judges  (Best,  J.,  being  ab- 
sent) met  and  considered  this  case.  Four  of  the  judges,  namely, 
Richardson,  J.,  Burrough,  J.,  Wood,  B.,  Graham,  B.,  doubted 
whether  this  was  larceny  because  there  was  no  intent  to  cheat  Marsh 
&  Co.  or  to  charge  them,  but  the  intent  was  to  cheat  the  Crown. 
Seven  of  the  judges,  namely,  Garrow,  B.,  Holroyd,  J,,  Park,  J., 
Bayley,  J.,  Richards,  C.  B.,  Dallas,  C,  J.,  Abbott,  L.  C.  J.,  held  it 
a  larceny  because  Marsh  &  Co.  had  a  right  to  the  possession  until  the 
goods  reached  the  ship ;  they  had  also  an  interest  in  that  possession, 
and  the  intent  to  deprive  them  of  their  possession  wrongfully  and 
against  their  will  was  a  felonious  intent  as  against  them,  because  it 
exposed  them  to  a  suit  upon  the  bond.  In  the  opinion  of  part  of  the 
seven  judges  this  would  have  been  larceny  although  there  had  been 
no  felonious  intent  against  Marsh  &  Co.,  but  only  an  intention  to 
defraud  the  Crown.^ 


REGINA  V.   WEBSTER. 
Crown  Case  Reserved.     1861. 

[Reported  9  Cox  C.  C.  13.| 

Case  reserved  for  the  opinion  of  this  court  by  the  Chairman  of  the 
West  Riding  Sessions,  held  at  Sheffield. 

William  Webster  was  indicted  at  the  West  Riding  of  Yorkshire 
Spring  intermediate  sessions,  held  at  Sheffield,  on  the  22d  May,  1861, 
for  stealing,  on  the  Uth  of  May,  at  Ecclesfield,  three  sovereigns  and 
one  half-sovereign,  the  property  of  Samuel  Fox  and  others. 

It  was  proved  on  the  trial  that  James  Holt  was  in  possession  of  a 
shop,  where  goods  were  sold  for  the  benefit  of  a  society  called  the 
"  Stockbridge  Band  of  Hope  Co-operative  Industrial  Society.'* 

1  Vide  Fost.  124.  — Rep. 


SECT.  VI.]  REGINA   V.   WEBSTER.  677 

Each  member  of  the  society  partook  of  the  profit,  and  was  Bubject 
to  the  loss  arising  from  the  shop.  Holt  (bt-ing  himself  a  member) 
had  the  sole  management,  and  was  answerable  for  the  safety  of  all 
the  property  and  money  coming  to  his  possession  in  the  couriie  of 
such  management.  The  prisoner,  also  a  member  of  the  society, 
assisted  in  the  shop  without  salary. 

On  the  occasion  of  the  allegtjd  larceny  Holt  had  marked  some  sover- 
eigns and  half-sovereigns,  and  placed  them  in  the  till.  The  prisoner 
was  suspected  of  taking  some  of  them,  and  when  charged  with  this  he 
admitted  that  he  had  taken  the  coins  which  formed  the  subject  of 
this  charge,  and  produced  them  from  his  pocket. 

The  prosecution  failing  to  prove  that  this  was  a  friendly  society 
duly  enrolled,  elected  to  amend  the  indictment  by  substituting  the 
name  of  James  Holt  for  that  of  Samuel  Fox  and  others,  and  the  same 
was  amended  accordingly. 

The  counsel  for  the  prisoner  put  in  a  copy  of  the  rules  of  the 
society,  with  the  name  of  John  Tidd  Pratt  print<'d  at  the  end  thereof, 
and  proved  that  this  copy  had  been  examined  with  the  original  copy, 
signed  and  sealed  by  the  registrar  of  friendly  societies,  but  which  waa 
not  produced.  He  also  put  in  a  conveyance  of  the  shop  and  premises 
to  Samuel  Fox  and  other  as  trustees. 

No  other  evidence  of  the  trusteeship  was  given. 

The  counsel  for  the  prosecution  objected  that  in  order  to  prove  the 
society  to  be  a  friendly  society  under  the  18  &  19  Vict.  c.  6.'i,  it  was 
necessary  to  produce  the  original  copy  signed  by  the  registrar,  or  to 
account  for  its  absence  sufficiently  to  justify  the  admission  of  secondary 
evidence. 

I  overruled  this  objection,  and  admitted  this  evidence  as  proof  that 
the  society  was  duly  enrolled. 

It  was  contended  for  the  prisoner  that  Fox  and  others  were  the 
trustees ;  that  this  was  a  friendly  society,  and  that  the  property  should 
be  laid  in  Fox  and  others,  and  not  in  Holt,  and  that  the  prisoner 
could  not  therefore  be  convicted  on  the  indictment  as  amended  ;  that 
as  to  any  special  property  Holt  might  have  in  the  money  taken,  he 
was  joint  owner  of  it  with  the  prisoner,  and  as  partner  with  him  was 
equally  in  possession  of  it,  and  could  not  therefore  be  convicted. 

The  court  overruled  these  last  mentioned  objections,  and  the 
prisoner  was  convicted  and  sentenced  to  be  imprisoned  in  the  house 
of  correction  at  Wakefield  for  nine  calendar  months,  subject  to  the 
opinion  of  the  Court  of  Criminal  Appeal  whether  under  tlie  circum- 
stances the  conviction  was  right. 

The  prisoner  was  admitted  to  bail  to  await  the  decision  of  the  Court 
of  Criminal  Appeal. 

A  copy  of  the  rules  of  the  society  accompanies  this  case,  and  is  to 
be  taken  as  incorporated  therewith. 

Wilson  Oveuend,  ChairmaD. 


678  REGINA   V.   WEBSTER.  [CHAP.  XIIL 

T.  Campbell  Foster,  for  the  prisoner.  It  is  contended  that  the  in- 
dictment as  amended  was  not  proved,  and  that  the  property  ought  to 
have  been  laid  as  in  Fox  and  others,  the  trustees  of  the  friendly 
society.  The  prosecutor  having  failed  to  prove  that  the  property  was 
rightly  laid  in  Fox  and  others,  and  the  court  having  amended  the 
indictment  by  substituting  Holt's  name  instead  of  Fox  and  others,  the 
prisoner  produced  the  proper  evidence  to  show  that  Fox  and  others 
were  the  trustees  of  the  society,  and  then  objected  to  the  indictment  as 
amended,  on  the  ground  that  by  the  18  &  19  Vict.,  c.  63,  s.  18,  the 
property  of  the  friendly  society  was  vested  in  the  trustees.  Sect.  19 
empowers  the  trustees  to  bring  or  defend,  or  cause  to  be  brought  or 
defended  any  action,  suit  or  prosecution  in  any  court  of  law  or 
equity,  touching  or  concerning  the  property,  right  or  claim  to  property 
of  the  society,  "  and  such  trustees  shall  and  may,  in  all  cases  con- 
cerning the  real  or  personal  property  of  such  society,  sue  and  be 
sued,  plead  and  be  impleaded  in  their  proper  names  as  trustees  of 
such  society  without  other  description," 

Martin,  B.  What  evidence  was  there  to  show  that  Holt  was  not 
in  possession  of  these  sovereigns  as  of  his  own  lawful  property? 

WiGHTMAN,  J.  Again,  he  was  a  partner,  and  had  the  personal 
possession  of  these  moneys. 

T.  CampheU  Foster.  It  is  submitted  that  the  only  possession  Holt 
had  was  that  of  a  servant  to  the  friendly  society.  If  he  had  taken 
and  appropriated  any  of  the  moneys  received  by  him,  he  might  have 
been  indicted  for  embezzlement,  and  therefore  he  was  a  servant,  and 
his  possession  was  that  of  the  society  his  masters. 

WiGHTMAN,  J.  He  was  not  a  servant ;  he  was  an  owner,  and  had 
the  sovereigns  in  his  personal  possession. 

Martin,  B.  He  had  the  sole  management  of  the  shop,  and  was 
answerable  for  the  safety  of  all  the  property  and  money  coming  to 
his  possession  in  the  course  of  such  management. 

T.  Campbell  Foster.  Then  the  prisoner,  being  also  a  member  of  the 
the  society,  was  a  partner,  and  could  not  be  convicted  of  stealing  his 
own  propert}'. 

Williams,  J.  There  is  the  well-known  case  of  a  man,  when  the 
hundred  was  liable,  being  convicted  of  stealing  his  own  money  from 
his  own  servant.     Foster,  123,  124. 

WiGHTMAN,  J.  These  sovereigns  were  not  part  of  the  goods  in  the 
shop,  but  money  for  which  Holt  had  to  account.  He  cannot  be  treated 
as  a  servant,  because  it  would  then  follow  that  he  was  one  of  the 
persons  appointing  himself. 

Martin,  B.  Holt  had  got  the  sovereigns  in  his  own  pocket,  as  it 
were,  and  suppose  that  while  walking  in  the  street  some  one  had 
picked  his  pocket  of  them,  could  not  the  thief  have  been  indicted 
for  stealing  his  money? 

T.  Campbell  Foster,  The  prisoner  was  assisting  in  the  shop  as  a 
partner  without  salary. 


SECT.  VI.]  ADAM.S   V.    STATE.  679 

WiGHTMAN,  J.     No.     Holt  had  the  sole  management  of  the  shop. 

Williams,  J.  How  iloes  this  case  differ  from  Rex  v.  liramley,  K. 
&  R.  478,  where  a  member  of  a  benefit  society  entered  the  room  of  a 
person  with  wliom  a  box  containing  tlie  fund.'*  of  the  society  v,m 
deposited,  and  took  and  carried  it  away,  and  it  was  held  to  be 
larceny,  and  the  property  to  be  well  laid  in  the  bailee? 

Pollock,  C.  B.  No  doubt  a  man  who  ha.s  pawned  his  watc-h  with  a 
pawnbroker  may  be  indicted  for  stealing  it  from  the  pa\viil)roker. 
The  present  case  finds  that  Holt  was  in  possession  of  the  sh<jp,  and 
had  the  sole  management,  and  was  answerable  for  the  safety  of  all 
the  property  and  money  coming  to  his  posses.sion  in  the  course  of  such 
management,  and  therefore  he  may,  quoad  hoc,  be  treated  aa  the 
owner. 

By  the  Codbt:  Conviction  ujjinned. 


ADAMS  V.    STATE. 
Supreme  Court  of  New  Jeusey.     1883. 

[Repoi-ted  45  New  Jersey  Law,  448.]  i 

Knapp,  J.  The  plaintiff  in  error  was  indicted  for  grand  larceny  at 
the  May  term  of  the  Union  Oyer  and  Terminer,  the  indictment  charg- 
ing her  with  having  feloniously  stolen  certain  goods  and  chattels  hs 
the  property  of  Thomas  W.  Sloan,  above  the  value  of  820.  She  was 
tried  before  the  Quarter  Sessions  of  ^ that  county,  convicted  upon  the 
trial,  and  sentenced  to  nine  months'  imprisonment  at  hard  labor.  The 
property  was  levied  upon  by  Sloan  as  the  property  of  Catherine 
Adams,  under  an  execution  which  Sloan  held,  as  constable,  against 
her ;  the  constable  allowed  the  goods  to  remain  at  the  house  of  the 
plaintiff  in  error,  the  place  of  the  levy,  she  being  informed  of  the  lew. 
Before  the  time  for  sale  under  the  execution,  the  plaintiff  in  error 
took  and  disposed  of  the  goods. 

The  case  comes  up  on  exceptions  to  the  refusal  of  the  court  to 
charge  as  requested,  and  upon  the  charge  as  made.  The  assignments 
of  error  present  the  question  whether  larceny  may  be  committed  by  the 
general  owner  of  property  in  taking  it  from  one  who  has  the  special 
ownership,  without  felonious  intent  in  such  taking. 

It  is  impossible,  under  ordinary  circumstances,  for  one  to  commit 
laroeny  in  taking  possession  of  his  own  property,  and  the  general 
owner  of  goods,  in  their  lawful  possession,  has  full  dominion  and  con- 
trol over  such  goods ;  but  it  seems  to  be  well  settled  in  the  law  that 
larceny  may  be  committed  by  a  man  stealing  his  own  proj)crty,  if  the 
taking  be  amino  furandi,  or  with  a  fraudulent  design  to  charge  the 
bailee  with  the  value  of  it.  There  is  a  passage  foimd,  as  early  as 
the  time  of  the  Year  Books,  in  which  it  is  said,  "  If  I  bail  to  you 


680  ADAMS   V.    STATE.  [CHAP.  XIIL 

certain  goods  to  keep,  and  then  retake  them  feloniously,  that  I  should 
be  hung  for  it,  and  yet  the  property  was  in  me."  ^  This  passage  is 
found  repeated  in  all  the  leading  criminal  treatises,  but  with  the 
addition  that  the  goods  be  taken  with  the  fraudulent  design  to  charge 
the  bailee  with  their  value.  1  Hale  P.  C.  513  ;  4  Bl.  Com.  334  ;  2 
East  P.  C.  558 ;  Ros.  Crim.  Ev.  650.  As  if  one  delivers  his  goods  to 
another,  as  his  servant  or  bailee,  and  then  steals  them  from  such 
servant  or  bailee,  with  a  fraudulent  intent  to  charge  him  with  their 
value,  this  would  be  larceny  in  the  owner,  although  he  might  have 
had  their  possession  through  the  lawful  assertion  of  his  title.  On  an 
indictment  for  larceny  against  such  general  owner,  the  property  in  the 
goods  stolen  may  be  laid  as  that  of  the  special  owner.  The  general 
property  of  goods  levied  on  by  execution  is  in  the  debtor,  and  remains 
in  him  until  they  are  sold  for  the  purpose  of  satisfying  the  execution  ; 
but  the  officer  who  levies  acquires  a  special  property  in  those  goods, 
which  entitles  him  to  their  possession  until  satisfaction  be  made  of  the 
execution.  Dillenback  v.  Jerome,  2  Cow.  293  ;  Smith  v.  Burtis,  6 
Johns.  196.  The  defendant  asked  the  court  to  charge  the  jury  that 
there  was  a  variance  in  the  allegation  of  property  in  Sloan,  and  the 
proof  upon  the  trial ;  that,  therefore,  the  defendant  should  not  be 
convicted.  This  the  court  refused  to  charge,  and  the  evidence  is 
brought  here  for  examination  as  to  the  correctness  of  the  court's 
actiou  in  so  refusing ;  but  upon  the  evidence  it  appears  that  Sloan,  as 
already  stated,  had  a  special  property  in  the  goods,  and  they  were 
therefore  properly  laid  as  his  goods  in  the  indictment.  There  was 
no  error  in  refusing  so  to  charge.^ 

The  next  exception  is  as  to  what  the  court  did  charge  on  the  subject 
of  ownership.  By  the  bill  of  exceptions  it  appears  that  the  court  said 
that  by  virtue  of  the  execution  and  levy  "  the  constable  became  the 
owner  of  the  goods  levied  upon  until  sold  b^'  him,  and  that  if  she  took 
the  goods,  or  assisted  an}'  one  else  in  the  taking,  she  is  guilty."  The 
part  of  the  charge  contained  in  this  bill  of  exceptions  is  all  we  have  of  it. 
It  would  seem  to  be  a  sufficient  statement  of  the  law  defining  the  rights 
which  the  constable  acquires  in  virtue  of  a  lev}'.  It  was  made  b}'  the 
court  in  answer  to  the  objection  that  the  true  ownership  was  not  alleged 
in  the  indictment,  and  as  respects  that  question  the  instruction  of 
the  court  was  correct.  The  constable's  ownership  was  a  qualified  one, 
it  is  true,  but  it  was  sufficient  to  support  the  averment.  The  further 
statement  in  that  portion  of  the  charge,  namely,  "  that  if  she  took  the 
goods  or  assisted  any  one  else  in  taking  them,  she  is  guilt}',"  may  be 
subject  to  more  criticism.  It  certainly  is  not  a  full  presentation  of  the 
law.  It  is  not  every  sort  of  taking  of  these  goods  that  would  make  her 
criminally  liable.  It  might  have  amounted  to  no  more  than  a  trespass 
or  a  conversion  of  the  property  as  against  the  officer.  The  goods  were 
left  in  her  custody  by  the  officer.    As  between  them  she  may  have  beea 

1  Y.  B.  7  Hen.  VI.  43.  —  Ed. 
Ace.  People  v.  Long,  50  Mich.  249;  Pahnet  i;.  People,  10  Wend.  165.  — Ed. 


SECT.  VI.]  ADAMS   V.    STATE.  08 1 

considered  as  a  mere  receiptor  for  the  goods,  with  the  right  in  the  ofncer 
to  deprive  her  of  her  possession  and  assume  it  himself,  lint  she  not  only 
had  their  Jictnal  custody,  but  was  as  well  the  gt-iieral  owner,  and  could 
at  any  time  before  sale,  by  paying  the  judgmuul,  remove  the  olliccr'a 
hands  entirely  from  her  property.  Now,  unless  her  taking  the  gooils 
was  under  such  circumstances  as  in  some  way  to  fraudulently  charge 
him  with  their  value,  it  is  dillicult  to  lind  any  recognized  rule  uf  criminal 
law  that  would  hold  her  answerable  for  larceny. 

This  case  fails  in  resemblance  to  that  of  Palmer  v.  People,  10  Wend. 
166,  in  this  important  feature :  Palmer  was  convicted  of  having  felo- 
niously stolen  property  of  one  Jennings,  who,  as  constable,  had  levied 
upon  property  by  virtue  of  an  execution  against,  Palmer.  The  goods,  by 
the  officer's  consent,  remained  with  Palmer,  who  subsequently  sold  the 
shingles  and  charged  the  constable  with  having  taken  them  away,  and 
brought  suit  against  him  for  their  value  upon  that  false  allegation. 
This  proof  was  held  sufficient,  on  the  ground  that  it  charged  a  felo- 
nious taking  of  his  own  propert}',  with  intent  to  charge  the  constable 
with  the  value  of  it,  bringing  the  case  within  the  rule  above  stated  as 
the  ground  of  criminal  liabilitj'.  In  this  charge  is  found  the  broad 
proposition  that  any  sort  of  taking  or  conversion  by  the  general  owner 
of  property  left  in  her  possession  bv  a  constable  possessed  of  the  rights 
which  a  levy  gives  him,  is  a  criminal  act,  and  that  of  larceny.  No 
fraudulent  or  evil  design  existing  in  the  mind  of  the  defendant  is 
charged  or  intimated  to  be  a  necessary  element  of  guilt.  It  would  not 
be  every  taking  by  a  mere  stranger  of  these  goods  from  the  possession 
of  the  constable  that  would  amount  to  larceny.  A  felonious  intent 
would  be  a  requisite  ingredient  in  such  crime.  A  conversion  of  the 
goods  by  a  stranger  who  had  been  appointed  their  keeper  by  a  con- 
stable, would  not  have  been  a  crime  but  a  civil  wrong  merely.  To  hold 
the  general  owner  in  possession  to  a  severer  rule  seems  to  me  to  savor 
of  illegal  severity.  I  am  unable,  in  the  researches  I  have  made,  to 
find  any  case  which  warrants  the  ascription  of  criminality  to  such  facts. 
The  case  of  Rex  v.  Wilkinson,  Russ.  &  R}-.  470,  which  goes  as  far  as 
any  other  that  I  have  found,  presented  the  features  of  flagrant  fraud  on 
the  part  of  the  defendants,  who  were  the  real  owners  of  the  property, 
upon  either  the  prosecutors  or  upon  the  Crown.  As  to  which,  the  judges 
were  divided  in  opinion.  If  we  are  permitted  to  look  into  the  evidence 
which  is  handed  us  with  the  record,  one  can  scarcel}'  escape  the  conclu- 
sion that  if  the  rule  had  been  stated  to  the  jury  with  the  proper  quali- 
fication, the}'  must  have  failed  to  find  in  it  evidence  of  such  felonious 
design  as  would  have  raised  the  offence  above  that  of  a  mere  civil 
injury. 

Whether  the  judge  in  other  parts  of  his  charge  qualified  the  expres- 
sions in  the  opinion  excepted  to,  we  have  no  means  of  knowing ;  the 
charge  is  not  before  us.  We  have  nothing  but  this  pointed  statement 
of  his  views  of  the  law.  We  must  assume  that  this  embraced  his  entire 
instruction  to  the  jury  upon  the  legal  requisites  of  guilt,  and  it  wa3 


C' 


682  REX   V.   CABBAGE.  [CHAP.  XIII. 

erroneous  in  a  way  that  must  have  prejudiced  the  defendant  in  her 
triiiL  I  think  the  judgment,  for  this  error,  should  be  reversed  and 
a  new  tiial  ordered. 


REX  V.    CABBAGE. 
Crown  Case  Reserved.     1815. 

[Reported  Russell  ^  Ryan,  292.] 

The  prisoner  was  tried  before  Thomson,  C.  B.,  at  the  Lent  Assizes 
for  the  county  of  Lancaster  in  the  year  1815,  on  an  indictment  for 
feloniously  stealing,  taking,  and  leading  away  a  gelding,  the  property 
of  John  Camplin. 

The  second  count  charged  the  prisoner  with  feloniously,  unlawfully, 
wilfully,  and  maliciously  killing  and  destroying  a  gelding,  the  property 
of  the  said  John  Camplin,  against  the  statute,  etc. 

The  counsel  for  the  prosecution  elected  to  proceed  upon  the  first 
count. 

It  appeared  that  the  gelding  in  question  was  missed  by  the  prosecu- 
tor from  his  stables  on  Monday,  the  28th  of  February,  1815.  The 
stable-door,  it  appeared,  had  been  forced  open.     The  prosecutor  went 

^  the  same  day  to  a  coal-pit,  about  a  mile  from  the  stable,  where  he  saw 

the  marks  of  a  horse's  feet.     This  pit  had  been  worked  out  and  had  a 

TO  fence  round  it,  to  prevent  persons  from  falling  in ;  one  of  the  rails  of 

this  fence  had  been  recently  knocked  off.     A  man  was  sent  down  into 

^.  .  the  pit,  and  he  brought  up  a  halter,  which  was  proved  to  be  the  halter 

A  belonging  to  the  gelding.     In  about  three  weeks  after  the  finding  of 

'  the  halter,  the  gelding  was  drawn  up  from  the  coal-pit  in  the  presence 

of  the  prosecutor,  who  knew  it  to  be  his.  The  horse's  forehead  was 
very  much  bruised,  and  a  bone  stuck  out  of  it.  It  appeared  that  at 
the  time  this  gelding  was  destroyed,  a  person  of  the  name  of  Howarth 
was  in  custody  for  having  stolen  it  in  August,  1813,  and  that  the  prose- 
cutor, Camplin,  had  recovered  his  gelding  again  about  five  weeks  after 
it  was  taken.  Howarth  was  about  to  take  his  trial  for  this  offence 
when  the  gelding  was  destroyed  in  the  manner  stated.  The  prisoner 
Cabbage  was  taken  into  custody  on  the  27th  of  March,  1815  ;  and  on 
his  apprehension  he  said  that  he  went  in  company  with  Anne  Howarth 
(the  wife  of  Howarth,  who  was  tried  for  stealing  the  said  gelding)  to 
Caraplin's  stable-door,  and  that  they  together  forced  open  the  door  and 
brought  the  horse  out.  They  then  went  along  the  road  till  they  came 
to  the  coal-pit  before  mentioned,  and  there  they  backed  the  horse  into 
the  pit 

It  was  objected  by  the  prisoner's  counsel  that  the  evidence  in  this 
case  did  not  prove  a  larceny  committed  of  the  horse  ;  that  the  taking 


SECT.  VI.]  REX   V.   MORFIT.  683 

appeared  not  to  have  been  done  with  intention  to  convert  it  to  the  use 
of  the  taker,  animo  furuudi  tt  lucri  atumi. 

Thomson,  C  B.,  overruled  the  objection,  and  tiie  prisoner  wa«  con- 
victed upon  the  first  count  of  the  indictment  for  stealing  the  horse. 
Judgment  was  passed  on  him,  but  the  learned  Chief  llaron  respited  the 
execution  to  talie  the  opinion  of  the  judges  as  to  tin;  prupritly  of  the 
conviction. 

In  Easter  Term,  1815,  the  judges  met  to  consider  this  ease,  and  the 
majority  of  the  judges  held  the  conviction  right.  Six  of  tlie  learned 
judges,  namely,  Richakds,  B.,  Bayley,  J.,  CiiAMituE,  J.,  Ihomson, 
C.  B.,  GiiJUS,  C.  J.,  and  Louu  Ellknuououc;!!,  held  it  not  essential  to 
constitute  the  olfenee  of  larceny  that  the  taking  should  be  hirri  causa  ; 
they  thought  a  taking  fraudulently,  with  an  intent  wholly  to  di-prive 
the  owner  of  the  property,  sullicient ;  but  some  of  the  six  learned 
judges  thought  that  in  this  case  the  object  of  protecting  lIowarLh  by 
the  destruction  of  this  animal  might  be  deemed  a  benelit,  or  lucri 
causa.  Dallas,  J.,  \Voou,  B.,  Guaham,  B.,  Le  Blanc,  J.,  and  Heath, 
J.,  thought  the  conviction  wrong. ^ 


REX  V.   MORFIT. 
Crown  Case  Reserved.     1816. 

[Reported  Russell  ^-  Rjan,  307.] 

The  prisoners  were  tried  before  Mr.  Justice  Abbott,  at  the  Maid- 
stone Lent  Assizes,  in  the  year  1816,  upon  an  indictment  for  feloni- 
ously stealing  two  bushels  of  beans,  value  five  shillings,  the  goods  of 
John  Wimble- 
On  the  trial  it  was  proved  that  the  prisoners  were  servants  in  hus- 
bandry to  Mr.  Wimble  and  had  the  care  of  one  of  his  teams  ;  that  Mr. 
Wimble's  bailiff  was  in  the  habit  of  delivering  out  to  the  prisoners  at 
stated  periods,  from  a  granary  belonging  to  him,  and  of  which  his 
bailiff  kept  the  key,  such  quantity  of  beans  as  Mr.  Wimble  thought  fit 
to  allow  for  the  horses  of  this  team.  The  beans  were  to  be  split  and 
then  given  by  the  prisoners  to  the  horses.  It  appeared  that  the  gran 
ary-door  was  opened  by  means  of  a  false  key  procured  for  that  purpose, 
which  was  afterwards  found  hid  in  the  stable;  and  that  almut  two 
bushels  of  beans  were  taken  away  on  the  day  after  an  allowanee  had 
been  delivered  out  as  usual,  and  nearly  that  quantity  of  whole  beans 

»  Ace.  Williams  v.  State,  52  Ala.  411  ;  People  v.  Juarez.  28  Cal  3S0;  Koolv  r. 
State,  14  Ind.  36  {semhl<-)  ;  Warden  v.  .*^tate,  60  :SIi.«s.  638;  Delk  v.  Stat^,  64  MIm. 
77  ;  State  v.  Kvan.  12  Nev.  401  ;  State  v.  Caddie,  35  W.  V.a.  73.  Cn»trn.  Vcac*  >: 
State,  110  Ind.  95  ;  People  v.  Woodward,  31  Hun,  57.  See  also  Hamilton  r.  i^t*Xf.  35 
Miss.  214;  State  v.  SlinRerland,  19  Nev.  135;  State  v.  Davis,  38  N.  J.  L.  176;  Sl*le  "• 
Brown,  3  Strob.  508  {semble).  —  Ed. 


684  BEX  V.   DICKINSON.  [CHAP.  XIIL 

was  found  in  a  sack,  concealed  under  some  chaff  in  a  chaff-bin  in  the 
Btable. 

The  learned  judge  desired  the  jury  to  sa}'  whether  they  thought  both 
the  prisoners  were  concerned  in  taking  the  beans  from  the  gi-anary  ; 
and  also  whether  they  intended  to  give  them  to  Mr.  Wimble's  horses. 
The  jury  answered  both  questions  in  the  affirmative. 

Mr.  Justice  Bayley  had,  at  the  same  Assizes,  directed  a  verdict  of 
acquittal  under  circumstances  of  the  like  nature;  but  Abbott,  J.,  was 
informed  that  the  late  Mr.  Justice  Heath  had  many  times  held  this 
offence  to  be  larceny ;  and  that  there  had  been  several  convictions 
before  him  ;  and  also  that  to  a  question  put  by  the  grand  jury  at  Maid- 
stone to  the  late  Lord  Chief  Baron  Macdonald,  he  had  answered  that 
in  his  opinion  this  offence  was  a  larceny. 

On  account  of  this  contrariety  of  opinion,  the  learned  judge  before 
whom  this  case  was  tried  thought  it  advisable  to  submit  the  question 
to  aU  the  judges,  tlie  offence  being  a  very  common  one ;  a  verdict  of 
guilty  was  taken,  but  judgment  respited  until  the  ensuing  Assizes. 

In  Easter  Term,  1816,  eleven  of  the  judges  met  and  considered  this 
case.  Eight  of  the  judges  held  that  this  was  felony  ;  that  the  purpose 
to  which  the  prisoners  intended  to  apply  the  beans  did  not  vary  the 
case.  It  was,  however,  alleged  by  some  of  the  judges  that  the  addi- 
tional quantity  of  beans  would  diminish  the  work  of  the  men  who  had 
to  look  after  the  horses,  so  that  the  master  not  only  lost  his  beans,  or 
had  them  applied  to  the  injury  of  the  horses,  but  the  men's  labor  was 
lessened,  so  that  the  lucri  causa,  to  give  themselves  ease,  was  an 
ingredient  in  the  case.  Graham,  B.,  Wood,  B.,  and  Dallas,  J., 
thought  this  not  a  felony,  and  that  the  conyiction  was  wrong.^ 


REX  -y.   DICKINSON. 

Crown  Case  Reserved.     1820. 

[Reported  Russell  Sr  Ryan,  420.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley  at 
the  summer  Assizes  for  the  county  of  Lancaster,  in  the  year  1820,  for 
stealing  a  straw  bonnet,  some  other  articles  of  female  apparel,  and 
a  box. 

It  appeared  that  the  prisoner  entered  the  house  where  the  things 
were  in  the  night,  through  a  window  which  had  been  left  open,  and  took 
the  tilings,  which  belonged  to  a  very  young  girl  whom  he  had  seduced, 
and  carried  them  to  a  hay-mow  of  his  own,  where  he  and  the  girl  had 
twice  before  been. 

The  jury  thought  the  prisoner's  object  was  to  induce  the  girl  to  go 

»  Ace.  Reg.  V.  Privett,  1  Den.  C.  C.  193.    See  Stat.  26  and  27  "Vict,  c  103,  §  1.  —Ed, 


SECT.  VI.]  REGINA  V.    SPURGEON.  685 

again  to  the  hay-mow  that  he  might  again  meet  her  there,  but  that  he 
did  not  mean  ultimately  to  deprive  her  of  them. 

The  learned  judge  doubted  whether  this  was  a  felony,  and  discharged 
the  prisoner  upon  bail,  and  reserved  the  case  for  the  consideration  of 
the  judges. 

In  Michaelmas  term,  1820,  the  judges  met.  They  held  that  the 
taking  was  not  felonious,  and  directed  application  to  bo  made  for  a 
pardon.^ 


REX  V.   CRUMP. 
Worcester  Assizes.     1825. 

[Reported  1  Carrington  ^  Payne,  658.] 

This  prisoner  was  indicted  for  stealing  a  horse,  three  bridles,  two 
saddles,  and  a  bag,  the  property  of  Henry  Bateman. 

It  appeared  that  he  got  into  the  prosecutor's  stable,  and  took  away 
the  horse  and  the  other  property  all  together ;  hut  that,  when  he  had 
got  to  some  distance,  he  turned  the  horse  loose,  and  proceeded  on  foot 
to  Tewkesbury,  where  he  was  stopped  attempting  to  sell  the  saildles. 

G ARROW,  B.,  left  it  to  the  jury  to  say,  whether  the  prisoner  had  any 
intention  of  stealing  the  horse ;  for  that,  if  he  intended  to  steal  the 
other  articles,  and  only  used  the  horse  as  a  mode  of  carrying  off  the 
other  plunder  more  conveniently,  and,  as  it  were,  borrowed  the  horse 
for  that  purpose,  he  would  not  be,  in  point  of  law,  guilty  of  stealing 
the  horse. 

Verdict,  Not  guilty  of  stealing  the  horse;  Guilty  of  stealing  the  rest 
of  the  property.^ 


REGINA  V.   SPURGEON. 
Central  Criminal  Court.     1846. 

[Reported  2  Cox  C.  C.  102.) 

The  prisoner  was  indicted  for  stealing  a  bag  and  some  papers,  the 
property  of  John  Philpotts.  From  the  evidence  it  appeared  tliat  the 
prosecutor,  who  was  an  attorney's  clerk,  had  left  the  bag  on  a  l»onch 
in  the  outer  room  of  the  Master's  office  of  the  Queen's  Bench  while  he 
went  into  the  inner  office  to  transact  some  business.  On  entering  the 
latter  he  saw  the  prisoner,  who  was  asking  charity,  and  who  in  a  few 

1  Ace.  Cain  v.  fitate,  21  Tex.  App.  21.     And  see  Reg.  v.  Jone.",  1  Den.  C  C  188; 
U.  S.  V.  Durkee,  1  McAll.  196.  — Ed. 
»  Ace.  Dove  V.  State,  37  Ark.  261 ;  State  v.  York,  5  Harr.  493.  —  Ed. 


> 


686  REGINA  V.   GARDNER.  [CHAP.  XIII. 

minutes  quitted  the  room.  Shortly  afterwards  the  prosecutor,  on  re- 
turning to  the  place  where  the  bag  had  been  left,  discovered  that  it 
was  gone.  As  he  was  returning  to  his  employer's  chambers,  he  met 
the  prisoner  in  the  street  with  the  bug  in  his  possession.  On  being 
given  into  custody  the  prisoner  said  that  he  took  the  bag  believing 
that  it  had  been  accidentally  left  in  the  office  by  the  owner,  and  that 
his  intention  was  to  restore  it  to  him.  It  appeared  that  on  a  former 
occasion  some  papers  which  had  been  missed  by  the  prosecutor  were 
brought  to  his  office  by  the  prisoner,  who  received  a  shilling  for  his 
trouble. 

The  Recorder  (after  consulting  Mr.  Justice  Erie),  in  summing  up 
the  case  to  the  jury.  —  You  must  be  satisfied  that  the  prisoner  took 
this  property  against  the  consent  of  the  owner,  and  for  the  purpose 
of  gain.  I  am  of  opinion  that  it  is  not  essential  to  the  sustaining  this 
charge,  that  he  had  an  intention  of  converting  this  bag  permanently 
to  his  own  use.  1  will  ask  you,  first,  whether  you  think  he  took  it 
with  the  intent  to  exact  a  reward  from  the  owner  for  its  restoration, 
and  with  a  determination  not  to  restore  it  unless  such  reward  were 
given  him.  If  such  is  your  view  of  the  circumstances,  I  shall  have  no 
hesitation  in  saying  that  the  prisoner  has  committed  larceny.  Or, 
secondly,  do  you  think,  that  having  reasonable  grounds  for  believing 
that  the  bag  belonged  to  some  person  in  the  inner  office,  who  had 
deposited  it  there  for  a  short  time  until  he  should  return  for  it,  the 
prisoner  took  it  with  an  intention  of  returning  it  absolutely,  and  at 
all  events  taking  the  chance  of  any  reward  being  given  him  for  the 
pretended  service?  Even  in  this  case  I  am  of  opinion  that  he  would 
be  guilty  of  larceny  ;  but  I  would  reserve  that  question  for  the  opinion 
of  the  judges  before  I  passed  sentence. 

The  jury  returned  the  following  verdict :  — 

Guilty  of  taking  the  property  in  order  to  exact  a  reward^  and  the 
prisoner  would  not  have  delivered  it  up  without  such  reward.^ 


REGINA  V.  GARDNER. 
Crown  Case  Reserved.     1862. 

[Reported  9  Cox  C.  C.  253.] 

The  following  case  was  reserved  at  the  Middlesex  Sessions. 

Edward  Gardner  was  tried  on  an  indictment  charging  him  in  the  first 
count  with  stealing  one  banker's  cheque  and  valuable  securit}'  for  the 
payment  of  £82  195.,  and  of  the  value  of  £82  19s.,  and  one  piece  of 
stamped  paper  of  the  property  of  James  Goldsmith. 

1  Ace.  Reg.  V.  O'Donnell,  7  Cox  C.  C.  337 ;  Com.  u.  Mason,  105  Mass.  163 ;  Berry  a 
State,  31  Oh.  St.  219.  —  Ed. 


SECT.  VI.]  KEGINA   V.   GARDNER. 


687 


In  the  second  count  the  property  wu.s  .stated  to  be  the  property  of 
Thomas  Boucher. 

It  appeared  from  the  evidence  of  Thomas  Boucher,  a  hid  of  fourteen, 
that  he  found  the  cheque  in  question  ;  that  havinj,'  „„,.t  the  pn»*oner' 
Gardner,  in  whose  service  lie  had  formrrly  been,  he  8h<jwi-<|  it  u,  him'; 
that  the  prisoner  (Thomas  Boucher  hi-ing  umibie  to  read)  U)ld  him  it 
was  only  an  old  chctjue  of  the  Koyal  British  Bunk:  that  he  wishi-d  to 
show  it  to  a  friend,  and  so  kept  the  cheque  ;  that  Boucher  very  shortly 
on  the  same  day  went  to  prisoner's  siiop  and  asked  fur  the  checjuc  ; 
that  the  prisoner  from  time  to  time  made  various  excuses  fur  not  gi\iu'' 
up  the  cheque,  and  that  Boucher  never  a^'ain  saw  the  cheque. 

It  also  api)eared  that  the  prisoner  had  an  interview  with  (loldsmith, 
in  which  he  said  that  he  knew  the  cheque  was  Goldsmith's,  asked  what 
reward  was  offered,  and  upon  being  told  5s.,  said  he  would  rather  light 
his  pipe  with  it  than  take  its. 

The  cheque  has  never  been  received  either  by  Goldsmith  or  Boucher, 
though  there  was  some  evidence  (not  satisfactory)  by  the  prisoner's 
brother  of  its  having  been  inclosed  in  an  envelope  and  put  under  the 
door  of  Goldsmith's  shop. 

The  jury  found  ''That  the  prisoner  took  the  cheque  from  Thomas 
Boucher  in  the  hopes  of  getting  the  reward  ;  and,  if  that  is  larceny,  we 
find  him  guilty." 

Thereupon  the  judge  directed  a  verdict  of  guilty  to  be  entered,  and 
reserved  for  the  opinion  of  this  court  whether  upon  the  above  finding 
the  prisoner  was  properly  convicted. 

November  15.  Hest  (with  him  Besley)  for  the  prisoner  argued  that 
the  finding  of  the  jury  disproved  the  felonious  intent  In  Keg.  v.  York, 
3  Cox  Grim,  Cas.  181,  a  similar  finding  of  the  jury  was  held  to  amount 
to  "  Not  Guilty."     (He  was  then  stopped.) 

Kemp,  for  the  prosecution.  The  defemlant  read  the  cheque,  and 
knew  the  owner.  In  this  respect  the  case  differs  from  Keg.  r.  Christo- 
pher, 8  Cox  Grim.  Cas.  91 ;  28  L.  J.  35,  M.  C,  and  resembles  Keg.  v. 
Moore,  8  Cox  Grim.  Cas.  416 ;  30  L.  J.  77,  M.  C.  As  against  allthe 
world  but  the  true  owner,  the  boy,  Boucher,  was  the  owner,  and  tlie 
prisoner  took  the  cheque  from  him  against  his  will,  and  may  be  con- 
victed on  the  second  count. 

Pollock,  C.  B.  That  is  the  case  of  Armory  v.  Delamirie,  Str.  50'), 
where  a  bo}'  was  held  entitled  to  sue  his  master  for  a  jewel  which  he 
had  found  and  his  master  had  taken  from  him.  It  was  not  supposeil 
that  the  master  was  guilty  of  felony.  There  the  jewel  was  not  ear- 
marked, but  every  one  who  c.in  read  can  tell  to  whom  a  cheque 
belongs.  Properly  speaking  a  cheque  is  not  a  chattel,  and  is  not 
the  subject  of  larceny.  We  must  take  it  that  the  cheque  was  stampctl, 
and  being  stamped  it  was  not  a  piece  of  paper,  —  it  was  a  cheque. 

Cur.  adc.  ruU. 
November  22.      Pollock,  C.  B.     In  this  case  the  prisoner  was  con- 
victed of  stealing  a  cheque.     He  took  the  cheque  away  from  a  boy  who 


688  EEGINA  V.   TREBILCOCK.  [CHAP.  XIII. 

found  it,  and  did  not  immediately  give  information  to  the  owner,  but 
withheld  it  in  the  expectation  of  getting  a  reward.  The  taking  of  the 
cheque  from  the  finder  was  not  a  felonious  taking,  and  the  merely  with- 
holding it  ill  the  expectation  of  a  reward  was  not  a  larcen3\ 

The  rest  of  the  court  concurring. ^  Conviction  quashed. 


REGINA  V.  TREBILCOCK. 
Crown  Case  Reserved.     1858. 

[Reported  7  Cox  C.  C.  408.] 

At  the  General  Quarter  Sessions  of  the  Peace  holden  in  and  for  the 
borough  of  Plymouth,  on  the  1st  day  of  January,  1858,  before  Charles 
Saunders,  Esq.,  Recorder,  the  prisoner,  William  Trebilcock,  was  tried 
on  an  indictment  which  charged  him,  first,  with  a  larceny  upon  the 
Stat.  20  &  21  Vict.  c.  54,  §  4,^  in  having  as  bailee  of  plate,  the  property 
of  the  prosecutor,  fraudulently  converted  it  to  his  own  use  ;  secondly, 
with  a  common  larceny  of  the  same  plate.  The  jury  found  the  prisoner 
guilty  on  both  counts  of  the  indictment,  but  recommended  him  to  mercy, 
believing  that  he  intended  ultimately  to  return  the  property.  The 
question  for  the  opinion  of  the  court  is  whether,  consistently  with  the 
ground  upon  which  the  jury  recommended  the  prisoner  to  mercy,  the 
conviction  was  right  upon  both  or  either  of  the  counts. 

The  case  was  this :  The  prosecutrix,  Miss  Palmer,  resided  at  Ply- 
mouth, and  going  to  London  for  eight  or  ten  days,  deposited  with  the 
prisoner,  a  tradesman  at  Plymouth,  who  had  offered  to  take  care  of 
anything  for  her  during  her  absence,  a  chest  of  valuable  plate  for  safe 
custody  till  she  returned.  The  prisoner  bad  been  told  that  the  prose- 
cutrix would  leave  a  parcel  with  him,  which  he  said  that  he  would  put 
in  his  iron  chest  to  keep  for  her.  When  the  chest  of  plate  was  placed 
in  the  prisoner's  hands  it  was  locked  (the  prosecutrix  keeping  the  key), 
then  covered  with  a  wrapper  sewed  together,  and  sealed  in  a  great  num- 
ber of  places,  and  then  tied  with  cord.  The  prisoner  was  not  informed 
of  the  contents  of  this  parcel,  nor  was  any  key  given  to  him.  In  a  day 
or  two  after  the  prosecutrix  left  for  London,  he  had  uncorded  the  chest, 
broken  the  seals,  taken  off  the  wrapper,  procured  a  key,  opened  the 
chest,  and  taken  out  a  part  of  the  plate,  and  offered  it  to  one  Woolf ,  at 
Plymouth,  as  a  security  for  the  advance  of  £50.  The  pawnbroker  took 
up  one  of  the  pieces  of  plate  which  bore  the  crest  and  also  a  superscrip- 

1  Ace.  Reg.  r.  York,  3  Cox  C.  C.  181  ;  Micheaux  v.  State,  30  Tex.  A  pp.  660.  —  Ed. 

2  The  section  is  as  follows :  "  If  any  person  being  a  bailee  of  any  property  shall 
fraudulently  take  or  convert  it  to  his  own  use,  or  the  use  of  anj'  person  other  than 
the  owner  thereof,  although  he  shall  not  break  bulk  or  otherwise  determine  the  bail- 
ment, he  shall  be  guilty  of  larceny." 


1 


SECT.  VI.]  REGINA   V.   TREBILCOCK.  689 

tion  with  the  name  of  Sir  George  Magrath  upon  it,  and  expressing  his 
dislike  to  have  anything  to  do  with  it,  the  prisoner  said  that  he^waa 
under  an  engagement  to  be  married  to  Lady  Magrath.  The  prosec-ntrix 
had  lived  with  Sir  George  Magrath,  and  when  he  died  the  plate,  among 
other  property,  came  into  her  posses.sion.  Wooif  ultimately  declined 
any  advance  upon  it.  The  prisoner  then  communicated  liy  letter  with 
another  pawnbroker  named  Druiff,  at  Newport  in  Monmouthshire,  with 
whom  the  prisoner  had  before  hail  bill  transactions.  DruitT  came  to 
the  prisoner  at  Plymouth  and  advanced  iiim  £JUU,  taking  hills  for  the 
amount,  and  the  whole  chest  of  plate  worth  from  £.>0U  to  £000,  as  a 
collateral  security  for  the  loan.  Druitf  took  tije  plate  away  with  him 
to  Newport.  The  prisoner,  by  way  of  accounting  to  Druiff  for  the 
possession  of  the  plate,  represented  to  him  that  he  was  going  to  get 
married  to  the  lady  of  the  late  Sir  George  Magrath,  and  that  siie  had 
given  him  the  plate  to  take  care  of  till  they  were  married.  The  prose- 
cutrix went  to  London  on  the  8th  day  of  November,  and  returned  on 
the  17th  of  the  same  month.  On  her  return  the  prosecutrix  tried  often 
to  see  the  prisoner,  but  could  not  do  so  till  the  2Gth.  When  she  first 
saw  him  and  asked  him  for  the  parcel,  tiie  prisoner  said  he  would  send 
it  to  her  the  same  evening.  It  was  not  sent.  The  prosecutrix  went 
often  backwards  and  forwards  to  the  prisoner's  shop  and  private  resi- 
dence to  see  the  prisoner,  but  could  not  see  him  again  till  the  2d  of 
December,  when  the  prosecutrix  insisted  upon  instantly  having  her 
parcel.  The  prisoner  said  she  could  not  have  it  as  it  was  out  of  town,  he 
had  sent  it  to  Bristol ;  then  he  said  it  was  now  farther  than  Bristol,  that 
it  was  in  Wales,  but  that  he  would  write  a  letter  and  she  should  have 
it  on  Friday.  The  parcel  did  not  arrive.  The  prisoner  refused  to  tell 
in  whose  hands  it  was,  but  the  prosecutrix  had  learned  from  the 
prisoner's  father  that  Druiff  had  it.  The  inspector  of  police  went  to 
Newport  and  found  the  chest  of  plate  there,  but  Druiff  refused  to  give 
it  up  unless  upon  payment  of  the  £200  for  which  it  had  been  deposited 
with  him  as  security.  The  prisoner  could  not  redeem  it,  and  upon  the 
facts  being  made  known  to  the  prosecutrix  she  had  the  prisoner  taken 
into  custody  on  a  charge  of  stealing,  and  the  police  took  possession 
of  the  chest  of  plate  as  stolen  property. 

Upon  the  finding  of  the  jury,  with  the  recommendation  to  mercy 
above  stated,  the  counsel  for  the  prisoner  contended  that  to  support 
either  of  the  counts  in  the  indictment,  it  was  necessary  that  the  i)ris- 
onar  should  have  intended  permanently  to  deprive  the  prosecutrix  of 
her  property,  and  that,  as  the  jury  believed  that  his  intention  was 
ultimately  to  return  it,  the  verdict  was  wrong. 

The  prisoner  was  committed  to  prison,  and  sentence  deferred  until 
the  opinion  of  the  judges  shall  have  been  obtained  upon  the  question 
raised.  If  the  court  shall  be  of  opinion  that  the  ground  upon  wiiich 
the  jury  recommended  the  prisoner  to  mercy  may  consist  with  the 
verdict  upon  both  or  either  of  the  counts  of  the  indictment,  the  verdict 
to  stand  upon  both  or  either  of  the  counts  accordingly.     If  the  recom- 

44 


690  REGINA   V.    THEBILCOCK.  [cHAP.  XIII. 

mendatiou  may  not  consist  with  the  verdict  on  either  count,  then  the 
verdict  to  be  set  aside,  and  a  verdict  of  not  guilty  to  be  recorded. 

E.  W.  Cox,  for  the  prisoner.  The  question  is  whether  the  recent 
statute  20  &  21  Vict.  c.  54,  §  4,  alters  the  general  law  of  larceny  in 
any  other  respect  than  making  a  bailee  liable. 

LoKi)  Campbell,  C.  J.  If  this  was  larceny  at  all,  it  was  larceny  at 
common  law.     The  statute  would  make  no  difference  in  this  respect. 

Coleridge,  J.  If  not  a  larceny  at  common  law,  the  new  statute 
would  not  make  it  such ;  so  that  the  only  question  is  whether  the  pris- 
oner could  properly  be  convicted  of  larceny  at  common  law.  The  jury 
have  found  him  guilty. 

E.  W.  Cox.  Yes ;  but  they  recommended  him  to  mercy  on  a 
ground  which  shows  that  a  verdict  of  guilty  is  wrong.  They  found 
that  he  intended  ultimately  to  return  the  property  to  the  owner. 

Crowder,  J.     That  is,  if  he  could  get  it  back  again. 

E.  W.  Cox.  The  law  on  this  subject  is  distinctly  laid  down  in  R.  v. 
Holloway,  3  Cox  C.  C.  145  ;  and  still  more  recently  in  R.  v.  Poole 
and  Yeates,  7  Cox  C.  C.  373.  In  R.  v.  Holloway,  Parke,  B.,  said, 
that  in  order  to  constitute  larceny  there  must  be  the  intention  to  de- 
prive the  owner  wholly  of  his  property,  to  usurp  the  entire  dominion 
over  the  chattels  taken,  and  to  make  them  his  own  ;  and  Lord  Denman 
used  similar  language,  putting  the  case  of  a  man  taking  a  horse,  with 
the  intention  of  riding  him  throughout  England,  and  then  returning 
him. 

Coleridge,  J.  But  in  this  case  the  jury  do  not  say  that  at  the  time 
of  the  taking  the  prisoner  intended  to  return  the  plate. 

Lord  Campbell,  C.  J.  On  the  contrary  they  negative  it  by  finding 
him  guilty. 

E.  W.  Cox.  It  is  necessarily  implied  in  their  statement  that  when 
he  parted  with  it  to  the  pledgee,  he  had  it  in  his  mind  to  get  it  back 
again  and  restore  it  to  the  owner. 

Lord  Campbell,  C.  J.  Your  general  proposition  of  law  is  right 
enough,  but  it  does  not  apply  to  this  case. 

E.  W.  Cox.  If  the  court  interprets  the  expression  used  by  the  jury 
as  meaning  only  that  at  some  time  after  the  larceny  the  prisoner  in- 
tended to  return  the  property,  the  argument  founded  on  R.  v.  Holloway 
necessarily  fails.  But  that  could  not  be  the  meaning  of  their  finding. 
The  alleged  larceny  was  complete  at  the  moment  of  depositing  the  plate 
with  the  pledgee.  It  was  for  that  he  was  tried,  and  to  that  alone  was 
the  attention  of  the  jury  directed.  They  had  nothing  to  do  with  any 
subsequent  intent.  Their  conclusion  could  have  had  reference  only  to 
the  felonious  act  charged  in  the  indictment,  and  to  the  moment  of 
committing  it,  and  if  they  were  of  opinion  that  he  had  then  an  inten- 
tion to  return  it,  of  which  there  is  no  doubt,  he  is  not  guilty  of 
larceny. 

Carter,  for  the  prosecution,  was  not  called  upon. 

Lord  Campbell,  C.  J.     The  general  proposition  contended  for  by 


SECT.  VI.]  KEGINA    V.    TKKUILCOCK.  6'Jl 

Mr.  Cox  is  perfectly  correct.  To  constitute  hireeriy,  there  must  Ije  uii 
intention  on  the  part  of  tlie  thief  conipk-tci y  to  Jippropriule  the  properly 
to  liis  own  use  ;  and  if  at  the  time  of  tlie  asportutiou  hiu  intention  \n  to 
make  a  mere  temporary  use  of  the  cliuttels  taken,  so  that  the  dominus 
siioukl  again  have  the  use  of  them  ufterwanUs,  that  is  a  trespass,  but 
not  a  felony;  but  tiiat  law  does  nut  apply  to  this  case.  Here  there 
was  altundant  evidence  of  a  larceny  atccjiiimon  law  ;  al>undanl  evidence 
from  which  the  jury  miglit  (ind  that  the  prisoner  feloniously  stole  the 
plate  ;  and  the  jury  have  found  a  verdict  of  guilty,  liut  they  have 
recommended  him  to  mercy,  and  accompanied  that  recommen<lation  with 
a  statement  as  to  the  prisoner's  intention  to  return  the  stolen  properly. 
Now,  I  doubt  whether  wiiat  the  jury  say  in  giving  their  reason  for 
recommending  the  prisoner  to  mercy,  is  to  be  considered  as  part  of 
their  finding  ;  but  even  assuming  it  to  be  so,  all  that  they  say  is,  that 
he  intended  ultimately  to  return  tlie  property  ;  not  that  at  the  time  of 
the  wrongful  taking  he  originally  intended  to  make  a  merely  temporary 
use  of  it. 

Coleridge,  J.  I  am  of  the  same  opinion.  There  is  uo  question 
about  the  law  in  this  case  ;  but  the  question  is  merely  as  to  the  facts. 
And  upon  the  facts  it  appears  that  the  prisoner  had  put  it  out  of  his 
power  to  return  tlie  plate  which  he  had  taken.  Then  what  must  we  do 
in  order  to  make  sense  of  the  llnding  of  the  jury?  It  is  to  be  observed 
that  the  recommendation  to  mercy  in  itself  assumes  that  the  verdict  of 
guilty  is  correct ;  but  the  jury  seem  to  have  thought  that  the  prisoner 
had  it  in  his  mind  at  some  uncertain  time,  if  he  could  get  hold  of  it 
again,  to  restore  the  property,  and  they  might  consider  that  a  sullicient 
reason  for  recommending  him  to  mercy.  That  interpretation  makes 
sense  of  their  finding,  whilst  the  construction  put  upon  it  by  Mr.  Cox 
renders  their  conduct  quite  inconsistent  and  insensible. 

Maktin,  B.  I  am  of  opinion  that  the  recommendation  to  mercy 
and  the  words  which  accompanied  it  were  no  part  of  the  verdict  at  all. 
and  that  when  the  jury  said  guilty  there  was  an  end  of  the  matter,  so 
far  as  the  verdict  was  concerned.  But  I  also  think  that  even  if  it  did 
form  part  of  the  verdict,  it  would  not  have  the  effect  of  bringing  it 
within  the  principle  of  the  cases  on  which  Mr.  Cox  relies.  It  seems  to 
me  quite  clear  that  this  prisoner  stole  the  plate,  and  then  pledged  it  for 
£200,  and  T  think  that  in  so  doing  he  "  usurped  the  entire  dominion  of 
it"  within  the  meaning  of  that  expression  as  used  by  Parke,  H.,  in  the 
case  cited.  If,  therefore,  a  special  verdict  had  been  found  in  the  very 
terms  used  by  the  jury,  when  they  recommended  the  prisoner  to  mercy, 
I  should  have  said  that  he  was  still  guilty  of  larceny. 

Ckowoer,  J.     It  seems  to  me,  also,  that  upon  the  facts  of  this  case 

no  other  rational  conclusion  could  be  arrived  at,  except  that  the  pri.>*<incr 

stole  the  plate.     He  broke  open  the  box,  and  took  out  the  plate,  anil 

stole  it,  but  the  jury  recommended  him  to  mercy  because  they  thought 

i\    that  he  had  an  intention  of  ultimately  restoring  il.     rroba)>Iy  it  very 

\|  often  happens  that  when  stolen  goods  are  pawned,  there  is  au  iiileutiou 


692  REGTNA  V.   HOLLOWAY.  [CHAP.  XIII. 

to  get  them  back  again,  if  the  person  pawning  them  should  ever  be  able 
to  do  so,  and  in  that  case  to  return  them  ;  but  such  an  intention  affords 
no  ground  for  setting  aside  a  verdict  of  guilty,  when  the  offence  of 
larceny  is  satisfactorily  proved  by  the  evidence. 

Watson,  B.  I  also  think  that  this  is  the  clearest  case  of  larceny 
possible,  though  the  jury  have  recommended  the  prisoner  to  mercy, 
because  they  thought  that  he  would  ultimately  have  restored  the 
property  if  he  could  have  got  it  back. 

Conviction  affirmed?' 


REGINA  V.  HOLLOWAY. 
Crown  Case  Reserved.     1849. 

[Reported  3  Cox  C.  C.  241 .] 

The  prisoner,  William  Holloway,  was  indicted  at  the  General  Quar- 
ter Sessions,  holden  in  aud  for  the  borough  of  Liverpool,  on  Decem- 
ber 4th,  1848,  for  stealing  within  the  jurisdiction  of  the  court  one 
hundred  and  twenty  skins  of  leather,  the  property  of  Thomas  Barton 
aud  another. 

Thomas  Barton  and  another  were  tanners,  and  the  prisoner  was  one 
of  many  workmen  employed  by  them  at  their  tannery,  in  Liverpool,  to 
dress  skins  of  leather.  Skins  when  dressed  were  delivered  to  the  fore- 
man, and  every  workman  was  paid  in  proportion  to  aud  on  account  of 
the  work  done  by  himself.  The  skins  of  leather  were  afterwards  stored 
in  a  warehouse  adjoining  to  the  workshop.  The  prisoner,  by  opening 
a  window  and  removing  an  iron  bar,  got  access  clandestinely  to  the 
warehouse,  and  carried  away  the  skins  of  leather  mentioned  in  the  in- 
dictment, and  which  had  been  dressed  by  other  workmen.  The  pris- 
oner did  not  remove  these  skins  from  the  tannery ;  but  they  were  seen 
and  recognized  the  following  day  at  the  porch  or  place  where  he  usually 
worked  in  the  workshop.  It  was  proved  to  be  a  common  practice  at 
the  tannery  for  one  workman  to  lend  work,  that  is  to  say,  skins  of 
leather  dressed  by  him,  to  another  workman,  and  for  the  borrower  in 
such  case  to  deliver  the  work  to  the  foreman  and  get  paid  for  it  on  his 
own  account,  and  as  if  it  were  his  own  work. 

A  question  of  fact  arose  as  to  the  intention  of  the  prisoner  in  taking 
the  skins  from  the  warehouse.  The  jury  found  that  the  prisoner  did 
not  intend  to  remove  the  skins  from  the  tannery  and  dispose  of  them 
elsewhere,  but  that  his  intention  in  taking  them  was  to  deliver  them  to 
the  foreman  and  to  get  paid  for  them  as  if  they  were  his  own  work  ; 
and  in  this  way  he  intended  the  skins  to  be  restored  to  the  possession 
of  his  masters. 

1  See  Reg.  v.  Phetheon,  9  C.  &  P.  552;  Reg.  v.  Medlaud,  5  Cox  C.  C.  292.  — Ed. 


^^'*^^-  ^''0  KEGIXA    V.    IIOLLOWAV. 


C93 


The  jury,  under  direction  of  the  court,  foun<l  the  prisoner  puiltv  • 
and  a  point  of  hnv  raised  ou  In-hHlf  of  the  prisoner  was  reserved,  and 
IS  now  suhnutted  for  the  consideration  of  the  justices  of  either  Bench 
and  barons  of  the  Ivxchequer. 

"  The  question  is,  whether,  on  the  finding  of  the  jurv,  the  prisoner 
ought  to  have  been  convicted  of  hirceny. 

^'Judgment  was  postponed,  and  tiie  prisoner  was  liberated  ou  bail 
taken  for  his  appearance  at  the  next  or  some  subsequent  Court  of 
Quarter  Sessions  to  receive  judgment,  or  some  final  order  of  the 
court." 

Lowndes,  in  support  of  tiie  conviction.  The  finding  of  the  jury 
shows  that  the  prisoner  committetl  larceny. 

Pauke,  B.  Is  not  this  case  governed  by  K.  v.  Webb,  1  M(.o<lv 
C.  C.  431?  ^ 

Lowndes.  The  cases  are  distinguishable.  In  that  case,  miners 
employed  to  bring  ore  to  the  surface,  and  paid  l)y  the  owners  accord- 
ing to  the  quantity  produced,  removed  from  the  heaps  of  other  miners 
ore  produced  by  them,  and  added  it  to  their  own  heaps,  the  ore  still 
remaining  in  the  possession  of  the  master ;  and  it  was  held  not  to  be  a 
larceny.  Here  the  skins  were  removed  from  the  place  in  which  they 
had  been  put  by  the  master  for  custody  into  a  place  in  which  they 
were,  in  fact,  in  the  prisoner's  custody.  In  R.  v.  Webb,  tlie  ore  was 
never  out  of  the  master's  custody ;  in  this  case,  the  skins  were  dis- 
tinctly out  of  the  master's  custody. 

Coleridge,  J.  In  the  case  of  R.  v.  "Webb  there  was  the  interval  in 
which  the  ore  passed  from  one  heap  to  the  other ;  was  it  not  then  out 
of  the  master's  custody? 

Lowndes.     There  was  no  intent  to  injure  the  owner  in  that  case. 
Coleridge,  J.     There  was  the  intent  to  obtain   payment  for  ore 
which  the  miner  had  not  dug  from  the  earth. 

Parke,  B.  It  is  essential  that  the  taking  should  be  with  the  intent 
to  deprive  the  owner  of  the  property  in  the  thing  taken  ;  the  jury  did 
not  find  that  in  this  case,  but  only  that  the  intention  of  the  prisoner 
was  to  get  paid  for  the  skins,  as  if  they  had  been  his  own  work. 
Lowndes.  It  is  not  necessary  that  there  should  be  the  intention 
wholly  to  deprive  the  owner  of  the  property  ;  it  is  enough  if  the 
chattel  is  taken  for  the  purpose  of  getting  a  benefit  different  from  the 
mere  use  of  it.  In  this  case,  thougli  there  was  an  intention  to  return 
the  skins,  there  was  not  the  intention  that  the  owner  should  be  put 
into  the  situation  in  which  he  was  before  the  taking ;  for  though  he 
was  to  have  the  skins,  he  was  to  liave  them  minus  the  wages. 

Parke,  B.     The  taking  must  be  with  intent  to  acquire  the  entire 
dominion  to  the  taker. 

Lowndes.     The  taking  must  be  treacherous,  —  for  evil  gain. 
Parke,  B.     feast's  definition  is,  "  The  wrongful  or  fraudulent  taking 
or  carrying  away  by  any  i)erson  of  the  mere  personal  goods  of  another 
person  anywhere,  with  a  felonious  intent  to  convert  them  to  his  (the 


694  EEGINA   V.   HOLLOWAY.  [CHAP.  XIII. 

taker's)  own  use  and  make  tbem  bis  property,  without  the  consent  of 
the  owner."     2  East  PI.  Cr.  553. 

Lowndes.  In  3  Inst.  107,  Lord  Coke  defines  larceny  to  be  "  the 
felonious  and  fraudulent  taking  and  carrying  away,  by  any  man  or 
woman,  of  the  mere  personal  goods  of  another,  neither  from  the  person 
nor  by  night  in  the  house  of  the  owner."  Bracton  and  Fleta  describe 
it  as  "  Contractatio  rei  alienae  fraudulenta,  cum  animo  furandi,  invito 
illo  domino,  cujus  res  ilia  fuerat."  Bracton,  lib.  iii.  c.  32,  fol.  150; 
Fleta,  lib.  1.  c.  36  ;  Glanville,  lib.  vii.  c.  17  ;  lib.  x.  c.  15  follows  Brac- 
ton. The  "Mirror"  gives  the  word  "  treachereusement ;  "  that  is, 
without  a  bona  fide  claim.  In  4  Blackst.  Com.  232,  it  is  said  that  the 
taking  must  be  "  felonious  ;  that  is,  done  animo  furandi,  or,  as  the 
civil  law  expresses  it,  lucri  causa."  Blackstone,  therefore,  uses  these 
phrases  as  synonymous. 

Lord  Denman,  C.  J.  Suppose  a  man  takes  the  horse  of  another 
with  intent  to  keep  him  for  a  year,  ride  him  through  all  the  counties 
of  England,  and  then  return  him;    is  that  a  larceny? 

Parke,  B.  There  must  be  an  intention  in  the  taker  to  acquire  the 
whole  dominion  over  the  thing,  to  make  it  his  own ;  to  do  what  he 
likes  with  it. 

Loicndes.     The  facts  in  this  case  show  a  taking  lucri  causa. 

Parkk,  B.     The  case  of  R.  2:.  Webb  has  decided  otherwise. 

Alderson,  B.  This  is  rather  an  obtaining  money  by  false  pretences 
than  a  larceny. 

Loicndes.  If  this  is  not  a  larceny  it  would  follow  that  if  chattels 
were  taken  for  the  purpose  of  obtaining  money  for  them  by  false 
pretences  from  the  owner,  and  in  that  way  converted  to  the  use  of 
the  taker,  he  would  not  commit  larceny.  If  the  statement  does  not 
sufficiently  show  what  offence  has  been  committed,  the  case  may  be 
restated. 

Lord  Denman,  C.  J.  No.  The  facts  on  which  we  are  to  decide 
must  be  stated  at  once.  This  court  is  not  to  be  used  to  keep  these 
cases  alive. 

Aldersox,  B.  This  will  not  prevent  you  from  bringing  an  indict- 
ment for  obtaining  money  under  false  pretences. 

Lovmdes.     No  money  was  obtained. 

Aldersox,  B.  The  attempt  to  commit  a  misdemeanor  is  a  misde- 
meanor ;  and  if  the  removal  of  the  skins  amounted  to  such  an  attempt, 
the  indictment  may  be  preferred.  The  only  question  here  is,  whether 
the  Recorder  ought  to  have  directed  the  jury  to  find  a  verdict  of  not 
guilty. 

Lord  Dexaiax,  C.  J.  If  I  thought  the  question  was  open  after  the 
authorities,  I  must  say  that  a  great  deal  might  be  urged  in  support  of 
the  proposition  that  these  facts  show  a  larceny  to  have  been  com- 
mitted ;  because  the  owner  is  deprived  of  his  property  for  some  time, 
and  the  probability  is  that  the  intent  distinguishing  the  case  from  lar- 
ceny may  be  altered.     The  case  which  I  put,  of  borrowing  a  horse  for 


I 


SECT.  VI.]  REGINA    V.    IIOI.LOWAY.  695 

a  year,  without  the  owner's  consent,  with  intent  to  ride  it  through 
England  and  then  return  it,  sliows  this.  Hut  if  we  (-ay  that  hormwinj^ 
alone  would  constitute  larceny,  we  are  met  hy  similar  cases  the  other 
way.  With  regard  to  the  definition  of  larceny,  we  have  of  late  yearn 
said  that  there  must  be  an  intention  to  deprive  the  owner  permanently 
of  his  property,  which  was  not  the  intention  in  this  case.  We  are  not 
disposed  to  encourage  nice  distinctions  in  the  criminal  law  ;  yet  it  is  an 
odd  sort  of  excuse  to  say  to  the  t)wner,  "  I  did  intend  to  eheat  you  in 
fact  and  to  cheat  my  fellow-workmen  afterwards."  This,  however,  ih 
not  an  act  which  is  not  punishable  ;  for  if  it  is  not  a  misdemeanor, 
which  at  the  first  sight  it  appears  to  be,  it  is  an  act  done  towanl  com- 
mitting that  misdemeanor.  We  must  abide  by  f<;rmer  decisions,  und 
hold  tliat  a  conviction  for  larceny  cannot  in  this  case  be  suiiporled. 

Parke,  B.  I  am  of  tlie  same  opinion.  We  are  lx)und  by  the  authori- 
ties to  say  that  this  is  not  larceny.  There  is  no  clear  definition  of  lar- 
ceny applicable  to  every  case  ;  but  the  definitions  that  have  been  given, 
as  explained  by  subsecpient  decisions,  are  suflicient  for  this  case.  The 
definition  in  East's  "  Pleas  of  the  Crown"  is,  on  the  whole,  the  best; 
but  it  requires  explanation,  for  what  is  the  meaning  of  the  phrase 
"wrongful  and  fraudulent"?  It  probably  means  "  without  claim  of 
right."  All  the  cases,  however,  show  that,  if  the  intent  was  not  at  the 
moment  of  taking  to  usurp  the  entire  dominion  over  the  property  and 
make  it  the  taker's  own,  tliere  was  no  larceny.  If  therefore  a  man 
takes  the  horse  of  another  with  intent  to  ride  it  to  a  distance  and  not 
return  it,  but  quit  possession  of  it,  he  is  not  guilty  of  larceny.  So  in 
K.  V.  Webb,  in  whi(;h  the  intent  was  to  get  a  higher  reward  for  work 
from  the  owner  of  the  property.  If  the  intent  must  be  to  usurp  the 
entire  dominion  over  the  property,  and  to  deprive  the  owner  wholly  of 
it,  I  think  that  that  essential  part  of  the  offence  is  not  found  in  this 
case. 

Alderson,  B.     I  cannot  distinguish  this  case  from  R.  i\  Webb. 

Coleridge,  J.,  concurred. 

CoLTMAN,  J.  We  must  not  look  so  much  to  definitions,  which  it  is 
impossible  a  priori  so  to  frame  that  they  shall  include  every  case,  as  to 
the  cases  in  which  the  ingredients  that  are  necessary  to  constitute  the 
offence  are  stated.  If  we  look  at  the  cases  which  have  been  decided, 
we  shall  find  that  in  this  case  one  necessary  ingredient  —  the  intent  to 
deprive  entirely  and  permanently  —  is  wanting. 

Conviction  reversed.^ 

i  Ace.  Hex  V.  Webb,  1  Moo.  C.  C.  431 ;    Reg.  v.  Poole,  7  Cox  C.  C.  373.     Contra 
Fort  V.  State,  82  Ala.  50.  —  Ed. 


696  EEGINA   V.    HALL.  [CHAP.  XIIL 

REGINA  V.   HALL. 
Crown  Cases  Reserved.      1849. 

[Reported  3  Cox  C.  C.  245.] 

The  following  case  was  reserved  by  the  Recorder  of  Hull :  — 

John  Hall  was  tried  at  the  last  Epiphany  Quarter  Sessions  for  the 
borough  of  Hull  on  an  indictment  charging  him  with  stealing  fat  and 
tallow,  the  property  of  John  Atkin. 

John  Atkin,  the  prosecutor,  is  a  tallow-chandler,  and  the  prisoner 
at  the  time  of  the  alleged  offence  was  a  servant  in  his  employment. 
On  the  morning  of  the  6th  of  December  last,  the  prosecutor,  in  conse- 
quence of  something  that  had  occurred  to  excite  his  suspicions,  marked 
a  quantity  of  butcher's  fat,  which  was  deposited  in  a  room  immedi- 
ately above  the  candle-room  in  his  warehouse.  In  tlie  latter  room  was 
a  pair  of  scales  used  in  weighing  the  fat,  which  the  prosecutor  bought 
for  the  purposes  of  his  trade.  At  noon  the  foreman  and  the  prisoner 
left  the  warehouse  to  go  to  dinner,  when  the  former  locked  the  doors 
and  carried  the  keys  to  the  prosecutor.  At  that  time  there  was  no  fat 
in  the  scales.  In  about  ten  minutes  the  prisoner  came  back  and  asked 
for  the  keys,  which  the  prosecutor  let  him  have.  The  prosecutor  watched 
him  into  the  warehouse  and  saw  that  he  took  nothing  in  with  him.  In 
a  short  time  he  returned  the  keys  to  the  prosecutor  and  went  away. 
The  prosecutor  then  went  into  the  candle-room  and  found  that  all  the 
fat  which  he  had  marked  had  been  removed  from  the  upper  room,  and 
after  having  been  put  into  a  bag  had  been  placed  in  the  scales  in  the 
caudle-room.  The  prosecutor  then  went  into  the  street  and  waited 
until  a  man  of  the  name  of  Wilson  came  up,  who  was  shortly  followed 
by  the  prisoner.  The  latter  on  being  asked  where  the  fat  came  from 
that  was  in  the  scales,  said  it  belonged  to  a  butcher  of  the  name  of 
Robinson ;  and  Wilson,  in  the  prisoner's  presence,  stated  that  he  had 
come  to  weigh  the  fat  which  he  had  brought  from  Mr.  Robinson's. 
The  prosecutor  told  Wilson  that  he  would  not  pay  him  for  the  fat  until 
he  had  seen  Mr.  Robinson,  and  left  the  warehouse  for  that  purpose. 
Wilson  immediately  ran  away,  and  the  prisoner,  after  offering  to  the 
prosecutor's  wife  if  he  was  forgiven  to  tell  all,  ran  away  too,  and  was 
not  apprehended  until  some  time  afterwards,  at  some  distance  from 
Hull. 

I  told  the  jury  that  if  they  were  satisfied  that  the  prisoner  removed 
the  fat  from  the  upper  room  to  the  candle-room,  and  placed  it  in  the 
scales  with  the  intention  of  selling  it  to  the  prosecutor  as  fat  belong- 
ing to  Mr.  Robinson,  and  with  the  intention  of  appropriating  the 
proceeds  to  his  own  use,  the  offence   amounted  to  larceny. 

The  jury  found  the  prisoner  guilty. 

Dearsley^  for  the  prisoner.  There  was  no  larceny  in  this  case. 
The  offence  was  an  attempt  to  commit  a  statutable  misdemeanor,  and 


SECT.  VI.]  REGINA   V.    DEECIIA.M.  697 

only  punishable  as  such.  The  case  of  K.  v.  IloIIoway,  13  Cox  C.  C. 
2-11,  decides  it.  There  was  an  asportation,  but  no  intention  to  dispohe 
of  the  property,  for  it  was  part  of  the  very  scheme  that  the  owner 
should  not  be  deprived  of  his  proi)erty  in  the  fat.  There  nnist  to  con- 
stitute larceny  be  a  taking  with  inlenlioii  of  gain  and  of  depriving  tiie 
owner  of  the  property  forever.  The  last  ingredient  is  wanting  iiere. 
(He  cited  R.  v.  Morlit,  U.  &  R.  307.) 

Alderson,  B.  If  a  man  takes  my  bank  note  from  me,  and  then 
brings  it  to  me  to  change,  does  lie  not  commit  a  larceny? 

I)i'(irsley.  A  bank  note  is  a  tiling  unknown  to  the  common  law,  and 
therefore  the  case  put  could  not  be  larceny  at  common  law. 

Loud  Dknman,  C.  J.  The  taking  is  admitted.  The  question  is 
whether  there  was  an  intention  to  deprive  tlie  owner  entirely  of  his 
property  ;  how  could  he  deprive  the  owner  of  it  more  etrectually  than 
by  selling  it?  To  whom  he  sells  it  cannot  matter.  The  case  put  of 
the  bank  note  would  be  an  ingenious  larceny,  but  no  case  can  be  more 
extreme  than  this. 

Parke,  B.  In  this  case  there  is  the  intent  to  deprive  the  owner  of 
the  dominion  over  his  property,  for  it  is  put  into  the  hands  of  an 
intended  vendor,  who  is  to  offer  it  for  sale  to  tiie  owner,  and  if  tiie 
owner  will  not  buy  it,  to  take  it  away  again.  The  case  is  distinguisii- 
able  from  that  of  R.  v.  Ilolloway  by  the  existence  of  this  intent,  and 
further  by  the  additional  impudence  of  the  fraud. 

Alderson,  B.     I  think  that  he  who  takes  property  from  another 
intends  wholly  to  deprive  him  of  it,  if  he  intend  tliat  he  shall  get  it 
back  again  under  a  contract  by  which  he  pays  the  full  value  for  it. 
Coleridge,  J.,  and  Coltman,  J.,  concurred. 

Conviction  affirmed.'^ 


REGINA  V.  BEECIIAM. 
Oxford  Assizes.     1851. 

[Reported  5  Cox  C.  C.  181.] 

Thf  indictment  in  the  first  count  charged  the  prisoner  with  the 
larceny,  on  the  8th  of  February,  1851,  of  three  railw.iy  tickets  of  tlic 
value  of  six  pounds  three  shillings,  and  three  pieces  of  pasteboard  ut 
the  value  of  one  penny,  the  property  of  the  London  and  North  Western 
Railwa}'  Compan}-. 

In  a  second  count  the  tickets  were  described  as  the  property  of  the 
station-master  at  the  Banbury  Road  station. 

It  appeared  in  evidence  that  tiie  prisoner  was  employed  by  the  r.iil- 
way  company  as  a  porter  in  the  goods  department  of  the   Banbury 

»  Ace.  Reg.  V.  Manning,  6  Cox  C.  C.  86.  —Ed. 


698  REGINA   V.    BEECHAM.  [CHAP.  XIII. 

Road  station.  On  the  evening  of  the  8th  of  Februan'  he  was  drinking 
beer  at  the  station  with  a  witness  of  the  name  of  Hazell,  who  was  a 
horselveeper  employed  at  the  station  by  an  innkeeper.  The  station- 
clerk  having  about  half-past  eight  o'clock  in  the  afternoon  left  his  office 
to  work  the  electric  telegraph  in  another  compartment  of  the  station, 
the  prisoner  went  into  the  ticket-office,  took  out  three  first-class  tickets 
for  the  joarnej-  from  Banbury  Road  station  to  York,  and  stamped  them 
in  the  machine  for  the  "  8th  February."  The  last  train  for  York  for 
that  day  had  been  despatched  a  considerable  time,  and  the  prisoner 
tried  to  alter  the  stamping  machine  so  as  to  re-stamp  the  tickets  with 
another  date,  but  failed  in  the  attempt.  He  then  gave  one  of  the  tickets 
to  Hazell,  saying,  "  There,  you  fool,  when  3'ou  want  to  go  a  long 
journey  you  need  not  pay ;  come  here  and  do  this." 

Hazell  mentioned  the  circumstance  on  the  following  da}-  to  the 
station-clerk,  who  went  to  the  prisoner  and  taxed  him  with  the  offence, 
saying,  "You  have  railway  tickets  in  your  pocket."  The  prisoner  at 
first  denied  it,  then  said  if  he  had  them  he  did  not  know  it,  and  eventu- 
ally took  the  two  tickets  from  his  pocket.  He  immediately  afterwards 
went  to  the  station-master  and  told  all  the  matter  to  him ;  the 
latter  said  the  prisoner  should  pay  for  the  tickets  or  be  reported.  A 
few  days  afterwards  he  was  suspended  from  his  employment  and  given 
into  custody  on  this  charge.  It  appeared  in  evidence  that  tickets 
stamped  for  one  day  might  be  re-stamped  for  another  day  and  so 
become  available. 

At  the  close  of  the  case  for  the  prosecution, 

Williams^  for  the  prisoner,  submitted  that  the  second  count  of  the  in- 
dictment could  not  be  sustained.  The  station-master  had  no  property 
in  the  tickets,  as  he  was  the  servant  of  the  railway  company,  and 
merely  had  the  custody'  of  the  tickets. 

Patteson,  J.,  expressed  his  assent  to  that  proposition. 

Williams  then  objected  with  respect  to  the  first  count,  that  as  the 
prisoner  must  have  intended,  supposing  he  took  the  tickets  with  a  view 
to  their  use,  that  they  should  be  returned  to  the  company  at  the  end  of 
the  journe}-,  there  was  no  such  absolute  taking  away  without  an  inten- 
tion of  restoration  as  was  necessary'  to  constitute  a  felon}-. 

Patteson,  J.,  said  his  opinion  was  that  it  was  a  question  for  the  jury 
to  say  whether  the  prisoner  took  the  tickets  with  an  intention  to  con- 
vert them  to  his  own  use  and  defraud  the  company  of  them. 

Williams  then  addressed  the  jury,  submitting  to  them  that  the  pris- 
oner took  the  tickets  in  a  foolish  incautious  way  as  a  joke,  and  without 
any  intention  whatever  to  defraud  the  compan}'. 

The  learned  judge  in  summing  up  told  the  jury  that  if  the  prisoner 
took  the  tickets  with  intent  to  use  them  for  his  own  purposes,  whether 
to  give  to  friends  or  to  sell  them  or  to  travel  by  means  of  them, 
it  would  not  be  the  less  larceny  though  they  were  to  be  ultimately 
returned  to  the  company  at  the  end  of  the  journey. 

Verdict^  not  guilty. 


SECT.  VII.]  REX   V.    FliANCIS.  69'J 

SFXTION  VII. 

Aggravated  Larceny. 
(o)  Robbery  and  L.vmtNv  kuom  thk  rKUHf>s. 

REX   V.   FKAN'CIS. 
King's  Bknch.  1735. 

[Reported  2  Stramje,  1015.] 

The  defendants  were  indicted  at  the  Assizes  in  Somersetshire,  for 
that  they  ft'luiiiously  made  an  assault  on  Samuel  Co.\  in  the  king's 
highway,  and  put  him  in  fear,  and  £9  in  money  from  the  person  of 
Cox  did  take,  steal,  and  carry  a\v:iy.  Upon  not  guilty  pleailed  by  all 
the  defendants,  the  jury  find  this  special  verdict  :  — 

That  Samuel  Cox  travelling  on  horseback  on  the  king's  highw.ay  to 
Somerton  Fair,  on  a  place  called  King's  Down  Hill  in  the  county  of 
Somerset,  saw  all  the  prisoners  in  company  together,  one  of  whom  wjis 
then  lying  on  the  ground  ;  that  Cox  passed  by  them,  and  one  of  them 
(but  which  the  jury  do  not  know)  called  to  Cox,  and  desired  him  to 
change  half  a  crown,  that  they  might  give  something  to  a  poor  Scot<.;hman 
then  lying  on  the  ground,  who  was  one  of  the  prisoners.  Cox  came 
back,  and  putting  his  hand  in  his  pocket  to  pull  out  his  money  in  order 
to  give  them  change  as  they  desired,  he  pulled  out  four  moidorcs  and  a 
Portugal  piece,  value  £3,  12  .s-.,  and  having  the  pieces  of  gold  in  his 
hand,  John  Francis,  one  of  the  prisoners,  gently  struck  Cox's  hand,  in 
wiiich  he  held  the  gold,  by  means  whereof  the  gold  fell  on  the  gronnd  ; 
that  thereupon  Cox  got  off  from  his  horse,  and  said  to  the  prisoners 
that  he  would  not  lose  his  money  so ;  and  the  said  Cox  then  and  then- 
offering  to  take  up  the  pieces  of  gold,  which  were  then  upon  the  ground, 
and  in  Cox's  presence  ;  the  prisoneis  then  and  there  swore  that  if  he 
touched  the  pieces  of  gold  they  would  knock  his  brains  out;  whercbv 
he  was  then  and  there  put  in  bodily  fear  of  his  life,  and  then  and 
there  desisted  from  taking  up  the  pieces  of  gold.  Th.at  the  prisoners 
then  and  there  immediately  took  up  the  gold,  and  got  on  their  horses, 
and  rode  off  with  the  gold  :  that  Cox  immeiUately  thereiiiwn  pur- 
sued them,  and  rode  after  them  for  about  half  a  mile  ;  and  then  the 
prisoners  struck  him  and  his  liorse,  and  swore  that  if  he  pursued  them 
an}'  farther  they  would  kill  him  ;  by  reason  of  which  menace  he  w!is 
afraid  to  continue  liis  pursuit  any  farther;  but  whether  upon  the  whole 
matter  the  prisoners  are  guilt}'  of  tlie  felony  and  robherv  charged  on 
them  the  jury  doubt,  and  pray  the  advice  of  the  court.     JCl  si,  Src.^ 

^  Upon  a  second  arguinont  it  \v.is  dptprriiined  that  ths  special  vortlict  did  not  state 
with  sufficient  certainty  whether  the  taking  wasin  the  presence  of  t  lit-  i.ru.«ei  uU>r. —  Fli*. 


700 


BEGIN  A   V.    SELWAY.  [CHAP.  XIII. 


This  special  verdict  and  the  prisoners  were  removed  into  the  King's 
Bench,  where  it  was  twice  argued  at  the  bar.  And  upon  the  first  argu- 
ment the  only  question  was,  whether  a  taking  in  the  presence  be  in 
point  of  law  a  taking  from  the  person,  and  it  was  unanimously  deter- 
mined ihat  it  was.^ 


REGINA  V.   SELWAY. 
Central  Criminal  Court.     1859. 

[Reported  8  Cox  C.  C.  235.] 

The  prisoners  were  indicted  for  robbery  and  stealing  from  the  per- 
son.2  'l^jje  evidence  showed  that  the  prosecutor,  who  was  paralyzed, 
received,  while  sitting  on  a  sofa,  in  a  room  at  the  back  of  his  shop,  a 
violent  blow  on  the  head  from  one  of  the  prisoners,  whilst  the  other 
went  to  a  cupboard  in  the  same  room,  and  stole  therefrom  a  cash  box, 
with  which  he  made  off. 

Orridge,  for  the  prisoners,  submitted  that  on  this  evidence  there 
was  no  proof  of  a  stealing  from  the  person.  The  cash  box  at  the  time 
it  was  stolen  was  at  some  distance  from  the  place  where  the  prosecutor 
was  sitting,  and  could  not  be  said,  therefore,  to  be  about  his  person. 

Robinson,  for  the  prosecution,  contended  that  it  was  quite  suffi- 
cient for  the  purposes  of  the  indictment  to  show  that  the  cash  box  was 
under  the  protection  of  the  prosecutor ;  it  need  not  be  in  his  bodily 
possession.  He  was  near  enough  to  it  to  protect  it,  at  least  by  raising 
an  alarm.  It  was  laid  down  in  1  Hale  P.  C.  533,  "  If  a  thief  put  a  man 
in  fear,  and  then  in  his  presence  drive  away  his  cattle,  it  is  a-i'obbery. 
So,  if  a  man  being  assaulted  by  a  robber  throw  his  purse  into  a  bush, 
or  flying  from  a  robber  let  fall  his  hat,  and  the  robber  in  his  presence 
take  np  the  purse  or  hat  and  carry  it  away,  this  would  be  robbery." 

The  Common  Sergeant,  having  consulted  Mr.  Justice  Crowder  and 
Mr.  Baron  Channell,  held  that  although  the  cash  box  was  not  taken 
from  the  prosecutor's  person,  yet  it  being  in  the  room  in  which  he  was 
sitting,  he  being  aware  of  that  fact,  it  was  virtually  under  the  pro- 
tection of  his  person.  He  should  under  the  circumstances  leave  this 
question  to  the  jury :  Was  the  cash  box  under  the  protection  of  the 
prosecutor's  person  at  the  time  when  it  was  stolen? 

The  jury  found  that  it  was.  Guilty? 

1  Ace.  U.  S.  V.  Jones,  3  Wash.  C.  C.  209,  216.  See  Clements  v.  State,  84  Ga. 
660;  State  r.  Calhoun,  72  la.  432.  — Ed. 

2  "  Whosoever  shall  rob  any  person,  or  shall  steal  any  chattel,  money,  or  valuable 
eecurity  from  the  person  of  another,  shall  be  guilty  of  felony."  24  &  25  Vict.  c.  96,  a 
40,  re-enacting  7  Wm.  IV.  and  1  Vict.  c.  87,  s.  5.  —  Ed, 

»  See  Com.  v.  Dimond,  3  Gushing,  235.  —  Ed. 


SECT.  VII.]  COMMONWEALTH   V.   HAilTNETT.  701 

SECTION    VII.     {continued.) 
{I)  Lakcknv  fiuim  a  1Jlildi.no. 

COMMONWEALTH   v.   IIAHTNETr. 
Supreme  Judicial  Coukt  of  Massachusetts.     185.0. 

[Reported  3  Grai/,  450  J 

Indictment  on  St.  1851,  c.  15G,  §  4,  for  hircony  in  a  biiildiiiH;  of 
Timothy  Plartnett.  At  the  trial  in  the  inunicipui  court,  it  appciircd 
that  the  said  Timothy  was  the  husband  of  the  defciuhiiit ;  ami  the 
defendant  contended  that  she  coukl  therefore  be  convicted  of  simple 
larceny  only.  But  Hoar,  J.,  ruled  that  the  evidence  was  sullicicnt  to 
sustain  the  charge  of  larceny  in  a  building.  And  to  this  ruling  the 
defendant,  being  found  guilty,  alleged  exceptions. 

J^.  A.  Andrew,  for  the  defendant. 

J.  II.  Clifford  (Attorney  General),  for  the  Commonwealth. 

Metcalf,  J.  The  defendant  is  convicted  of  larceny  in  a  building 
owned  by  her  husband  ;  and  as  the  indictment  does  not  aver  that  it 
was  committed  in  the  night  time,  it  must  be  taken  to  have  been  com- 
mitted in  the  daytime.  8t.  1843,  c.  1,  §  2.  The  question  is  wheliier 
the  defendant  is  liable  to  the  punishment  prescribed  by  St.  l.iol,  c.  lOC, 
§  4,  for  larceny  "  in  any  building,"  or  only  to  the  punishment  elsewhere 
prescribed  for  simple  larceny. 

Larcen}^  in  the  daytime,  in  a  dwelling-house  and  in  certain  other 
buildings,  not  broken  into,  was  first  subjected,  in  Massachusetts,  to 
greater  punishment  than  if  not  committed  therein,  by  St.  1«04,  c.  143, 
§  6  ;  to  wit,  solitary  imprisonment  of  the  offender,  in  the  state  prison, 
not  exceeding  six  months,  and  confinement  there  afterwards  to  hard 
labor,  not  exceeding  five  years.  By  St.  1830,  c.  72,  §  3,  courts  were 
authorized  to  sentence  such  offender  to  confinement  in  the  county  jail, 
not  exceeding  five  years,  or  to  the  payment  of  a  fine,  according  to  the 
nature  and  aggravation  of  the  offence.  By  the  Rev.  Sts.  c.  126,  §  14, 
it  was  thus  enacted :  "  Every  person  who  shall  steal,  in  the  daytime,  in 
an}'  dwelling-house,  office,  bank,  shop  or  warehouse,  ship  or  vessel, 
shall  be  punished  by  imprisonment  in  the  state  prison,  not  more  than 
five  years,  or  by  fine  not  exceeding  three  hundred  dollars,  and  im- 
prisonment in  the  country  jail,  not  more  than  two  years."  By  St.  1851, 
c.  lo6,  §  4,  "  every  person  who  shall  commit  the  offence  of  larceny,  by 
stealing  in  an}-  building,  shall  be  punished  by  imprisonment  in  the  state 
prison  not  more  than  five  years,  or  by  fine  not  exceeding  five  hundred 
dollars,  or  imprisonment  in  the  house  of  correction  or  county  jail,  nut 
exceeding  three  ^-ears."  For  simple  larceny,  that  is,  for  theft  not 
aggravated  by  being  from  the  person,  nor  by  being  committed  in  r 
dwelling-house  or  other  building,  ship,  or  vessel,  a  lighter  punishment 


702  COMMONWEALTH   V.   HAllT.NETT.  [CUAI'.  XiH. 

is  prescribed  by  the  Rev.  Sts.  e.  126,  §  17,  aud  c.  143,  §  5.  Aud 
we  are  of  opinion  tliat  the  defendant  is  liable  only  to  that  lighter 
punishment. 

We  do  not  suppose  that  any  English  statutes  for  the  punishment  of 
larceny  were  ever  held  to  be  in  force  in  Massachusetts.  7  Dane  Ab. 
168.  Yet  the  provisions  of  some  of  them,  and  the  provisions  of  acts  of 
Parliament  for  the  punishment  of  other  offences,  have  been  enacted  by 
our  legislature,  in  every  stage  of  our  history.  And  in  such  cases  (as 
well  as  in  cases  where  English  statutes  respecting  civil  concerns  have 
been  enacted  here),  it  has  always  been  held  that  the  construction  previ- 
ously given  to  the  same  terms,  by  the  English  courts,  is  the  construction 
to  be  given  to  them  by  our  courts.  It  is  a  common  learning,  that  the 
adjudged  coutitruction  of  the  terms  of  a  statute  is  enacted,  as  well  as 
the  terms  themselves,  when  an  act,  whicli  has  been  passed  by  the  legis- 
lature of  one  state  or  country,  is  afterwards  passed  by  the  legislature 
of  another.  So  when  the  same  legislature,  in  a  later  statute,  use  the 
terms  of  an  earlier  one  which  has  received  a  judicial  construction, 
that  construction  is  to  be  given  to  the  later  statute.  And  this 
is  manifestly  right.  For  if  it  were  intended  to  exclude  any  known 
construction  of  a  previous  statute,  the  legal  presumption  is,  that  its 
terms  would  be  so  changed  as  to  effect  that  intention.  6  Dane  Ab. 
613 ;  Kirkpatrick  v.  Gibson's  Ex'ors,  2  Brock.  388 ;  Pennock  v. 
Dialogue,  2  Pet.  18  ;  Adams  v.  Field,  21  Verm.  266  ;  Whitcomb  v. 
Kood,  20  Verm.  52 ;  Rutland  v.  Mendon,  1  Pick.  156 ;  Myrick  v. 
Hasey,  27  Maine,  17.  There  are  many  instances  in  which  our  legis- 
lature have  made  punishable,  as  offences,  acts  which  were  first  made  so 
by  English  statutes.  Among  others  are  our  statutes  concerning  the 
fraudulent  obtaining  of  raonej'  or  goods_by  false  pretences.  In  all  such 
cases,  the  construcM:ion  given  by^the.  En^lislLXiomits-is  deemed  to. .be  the 
true  one,  when  the  statutes  are  alike.  And  we  have  alreadj'  stated, 
that  the  act  of  stealing  in  certain  buildings  was  first  made  an  aggravated 
larcen}-,  and  subjected  to  a  greater  punishment  than  before,  bv  St. 
1804,  c.  143.  Yet  by  the  English  St.  12  Anne,  c.  7  (passed  in  1713, 
and  now  repealed),  it  was  enacted  that  "  all  and  everj'  person  or  persons 
that  shall  feloniouslj'  steal  any  mone}',  goods  or  chattels,  wares  or 
merchandises,  of  the  value  of  fort}-  shillings  or  more,  being  in  an}-  dwell- 
ing-house, or  outhouse  thereunto  belonging,  although  such  house  or 
outhouse  be  not  actuall}'  broken  b}-  such  offender,  and  although  the 
owner  of  such  goods,  or  an}'  other  person  or  persons  be  or  be  not  in 
such  house  or  outhouse,  being  thereof  convicted,  shall  be  absolutely 
debarred  of  and  from  the  benefit  of  clergy."  And  by  the  English  St.  24 
G.  II.  c.  4.5,  a  like  provision  was  made  in  cases  of  conviction  of  the 
offence  of  feloniously  steafing  goods,  wares,  or  merchandise,  of  the 
value  of  fort}'  shillings,  in  any  ship,  barge,  lighter,  boat,  or  other  vessel, 
upon  any  navigable  river,  or  in  any  port  of  entry  or  discharge.  But 
it  was  early  decided  that  the  first  of  these  statutes  did  not  extend  to  a 
stealing  by  one  in  his  own  house,  nor  to  a  stealing  by  a  wife  in  her 


SECT.  VII. J  COMMONWEALTH   v.   SMITH. 


7U3 


husband's  house,  which  is  the  same  as  her  own.  The  iiiteiitiuu  of  tlje 
statute  was  deciarea  to  bo,  to  prult-ct  the  owner's  |)roijerl\  in  his  own 
house  froui  tlie  dcijredatiou  of  others,  or  liic  prtjpcrly  of  Jtlicrs  loilgcnl 
in  his  house  ;  thereby  giving  in-oteetion  against  ail  but  the  owner  Imn- 
self.  It  has  also  been  decided  that  the  proi)ert3-  stolen  nnist  be  «uch  as 
is  usually  uuder  the  i)rotection  of  the  house,  doposite.l  there  for  safe 
custody,  and  not  things  iniuiediatuly  under  the  eye  or  |>er.>,onal  cure  of 
some  one  who  iiappens  to  be  in  liie  house.  2  East  P.  C.  GM-G4G  ;  The 
King  V.  Gould,  1  L(;acli  (3d  ed.),  2o7  ;  The  King  y.  Thompson  AMac- 
daniel,  1  Leach,  37'J  ;  The  King  v.  Campbell,  2  Leach,  G12.  See  also 
Rex  V.  Taylor,  Kuss.  &  Ry.  418;  Hex  r.  Hamilton,  8  C.  &  I».  4'J  ; 
Rex  V.  Carroll,  1  Mood.  C.  C.  89.  And  it  has  also  been  held  that  the 
St.  24  G.  IL  c.  45,  does  not  extend  to  stealing  by  the  owner  and 
master  of  a  vessel.     Rex  v.  Madox,  Russ.  &.  ity.  U2. 

We  arc  of  opinion  that  the  purpose  and  intent  of  St.  1801,  c.  143,  §  C, 
and  of  the  Rev.  Sts.  c  126,  §  14,  were  the  same  as  the  purpose  and 
intent  of  St.  12  Anne,  c.  7,  and  that  tiiey  nuist  have  tlie  same  con- 
struction which  was  given  to  tliat  before  these  were  enacted.  Indeed, 
the  attorney  general  frankly  admits  this,  and  that  he  cannot  ask  for 
sentence  against  the  defendant,  as  for  an  aggravated  larceny,  mdess  it 
is  required  or  warranted  by  St.  1851,  c.  15G,  §  4.  We  think  that 
statute  has  not  altered  the  law  in  this  matter;  that  it  has  onlv  made 
larceny  'Mn  any  buikling,"  an  aggravated  otlence,  as  former  statutes 
made  it  when  committed  in  certain  enumerated  buildings  ;  and  that  it 
has  not  subjected  to  the  punishment  therein  prescribed  anv  larcenv 
which,  if  committed  in  either  of  those  buildings,  would  not  iiave  been 
liable  to  such  punishment.  The  statute  was  passed  in  cotjsequcnce  of 
the  decision,  in  Commonwealth  v.  White,  6  Cush.  181,  that  the 
passenger  room  of  a  railroad  station  was  not  an  "oflice,"  within  the 
meaning  of  the  Rev.  Sts.  c.  126,  §  14. 

Defendant  to  be  sentenced  for  simple  larceny.^ 


COMMONWEALTH   v.   SMITH. 
Supreme  Judicial  Court  of  Massachusetts,  1873. 

[Reported  111  Massachusetts,  4'2'J.] 

Indictment  alleging  that  the  defendant,  on  April  14,  1872.  at  Brain- 
tree,  certain  bank  notes  ''of  the  property,  goods,  and  moneys  of  James 
Gilbride,  in  a  certain  building  there  situate,  to  wit,  the  dwelling-house 
of  one  Patrick  McGuire,  and  then  and  there  in  the  possession  of  the 

1  Ace.  Kex  I'.  Gould,  Leach  (4th  ed),  2'u.  Otherwise,  in  Knghuid,  uuder  Stat.  7 
&  8  G.  IV.  eh.  29,  §  12 ;  Keg.  v.  Bowdeu,  2  AIoo.  C.  C  283.  — Ed. 


704  COMMONWEALTH  V.   SMITH.  [cHAP.  XIII. 

said  James  Gilbride,  being  found,  feloniously  did  steal,  take,  and  carry 
away." 

At  the  trial  in  the  Superior  Court  in  Norfolk,  before  Putnam,  J.,  the 
Commonwealth  introduced  evidence  tending  to  show  that  the  defendant 
and  James  Gilbride  lodged  together  in  the  same  room  of  McGuire's 
house  ;  that  Gilbride  went  to  the  room  where  the  defendant  was  already 
in  bed,  put  the  money  in  his  trunk,  locked  the  trunk,  put  the  key  of  it  in 
his  pocket,  undressed,  put  his  clothes  on  a  chair,  and  went  to  bed  ;  that 
the  defendant  got  up  in  the  night,  took  the  key  from  the  pocket,  opened 
the  trunk,  took  out  the  money,  and  returned  the  key  to  the  pocket. 
Gilbride  testified  that  he  was  awakened  in  the  night,  and  saw  Smith 
with  a  lighted  match  at  one  of  the  trunks  in  the  room,  but  did  not  know 
it  was  his  own  trunk,  and  thought  nothing  more  of  it,  until  he  missed 
the  mone}-. 

The  defendant  asked  the  judge  to  rule  that  upon  this  evidence  the 
jury  could  not  find  the  defendant  guilty  of  larceny  in  a  building,  but 
only  of  simple  larceny.  The  judge  decUned  so  to  rule,  and  left  it  to 
the  jury  under  instructions  which  authorized  them  to  find  the  defendant 
guilty  of  larceny  in  a  building.     The  jury  returned  a  verdict  of  guilty. 

The  defendant  then  moved  in  arrest  of  judgment  on  the  ground  that 
the  indictment  did  not  aver  that  the  larceny  charged  was  committed  in 
any  building,  but  the  judge  overruled  the  motion. 

The  defendant  alleged  exceptions. 

W.  E.  Jeicell,  for  the  defendant. 

W.  G.  Colburn,  Assistant  Attorney  General  (C.  R.  Train,  Attor- 
ney General,  with  him),  for  the  Commonwealth. 

Gray,  J.  The  indictment  duly  charges  larceny  in  a  building.  The 
allegation  that  the  defendant  stole  property  in  the  dwelling-house 
described  necessarily  includes  a  statement  that  the  act  of  stealing 
was  done  in  the  building.  And  the  whole  charge  was  supported  by 
the  proof  In  order  to  constitute  larceny  in  a  dwelling-house  or  other 
building,  the  property  stolen  must  indeed  be  under  the  protection  of 
the  house,  and  not  under  the  eye  or  personal  care  of  some  one  who 
happens  to  be  in  the  house.  The  King  v.  Owen,  2  Leach  (4th  ed.),  572  ; 
Commonwealth  v.  Hartnett,  3  Gray,  450,  452.  But  money  of  a  lodger 
in  his  trunk,  as  well  as  the  key  of  the  trunk  in  a  pocket  of  his  clothes, 
is  clearly,  while  he  is  in  bed,  undressed,  and  asleep,  not  under  his  own 
protection,  but  under  the  protection  of  the  house.  Rex  v.  Taylor,  Russ. 
&  Ry.  418  ;  Rex  v.  Hamilton,  8  C.  &  P.  49.  The  defendant  was  there- 
fore rightly  convicted  of  larceny  in  a  building. 

Exceptions  overruled} 

1  Ace.  Rex  V.  Taylor,  Russ.  &  Ry.  418.  —Ed. 


SECT.  VII.]  COMMONWEALTH   V.   LESTER.  70i 


COMMONWEALTH   v.   LESTER. 
Supreme  Judicial  Court  of  Massachusetts,  1880. 

[Reported  129  Afassachnsetts,  101.] 

Ames,  J.^  In  an  indictment  founded  upon  the  Gen.  Sts.  c.  101,  §  15, 
for  larceny  in  a  building,  it  is  not  enough  to  prove  that  tlie  property 
stolen  was  in  a  building  at  the  time  of  the  theft,  and  that  the  defend- 
ant was  the  thief.  It  is  necessarj'  to  show  also  that  the  property  was 
under  the  protection  of  the  building,  placed  there  for  safe  keeping,  and 
not  under  the  ej'e  or  personal  care  of  .some  one  in  the  buihUng.  Tlie 
watches  in  this  case  were  a  part  of  the  owner's  stock  in  trade,  usually 
kept  by  him  in  the  building.  But  his  testimony,  which  was  the  only 
evidence  to  the  point,  is  to  the  effect  that  he  was  in  charge  of  the  prop- 
ert}',  when  the  defendant  came  in  and  asked  to  look  at  some  watches, 
and  that  he  handed  the  watches  to  the  defendant;  that  he  was  not 
sure  whether  the  defendant  held  the  watches  in  his  hand,  or  whether 
they  were  lying  on  the  show-case ;  and  that  the}'  were  stolen  while 
he  turned  partiallj'  round  to  place  something  upon  the  shelf  behind 
him.  If  they  were  upon  the  show-case  when  stolen,  it  would  be  at 
least  doubtful  whether  they  must  not,  under  the  circumstances,  be  con- 
sidered as  rather  in  the  possession  of  the  owner  than  under  the  pro- 
tection of  the  building.  If  by  the  act  of  the  owner  they  were  in  the 
hands  of  the  defendant,  they  certainly  derived  no  protection  from  the 
building.  As  the  evidence  left  it  wholl}'  uncertain  whether  they  were 
on  the  show-case  or  in  the  defendant's  own  hands,  it  did  not  warrant  a 
conviction  of  larceny  in  a  building ;  and  the  jury  should  have  been  so 
instructed.  Rex  v.  Campbell,  2  Leach  (4th  ed.)  564  ;  Rex  y.  Castle- 
dine,  2  East  P.  C.  645 ;  Rex  v.  Watson,  2  East  P.  C.  680 ;  s.  c.  2 
Leach,  640 ;  Rex  v.  Hamilton,  8  Car.  &  P.  49,  50,  note ;  Common- 
wealth V.  Smith,  111  Mass.  429. 

Exceptions  sustained} 

*  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 

2  Ace.  Rex  V.  Campbell,  Leach  (4th  ed.).  642.  Contra,  Simmona  v.  State,  73  Ga. 
609.    See  Com.  v.  Nott,  135  Mass.  269.  —  Ed. 


45 


-C^> 


r06  BEX  V.  HEADGE.  [CHAP.  XIV. 


CHAPTER    XIV. 
EMBEZZLEMENT. 

REX  V.  HEADGE. 
Crown  Case  Reserved.     1809. 

[Reported  Russell  ^  Ryan,  160.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Baj'ley  at 
the  Old  Bailey  Sessions,  September,  1809,  on  the  statute  39  G.  III.  c. 
85,  for  embezzling  three  shilhngs,  which  he  received  for  and  on  account 
of  his  masters,  James  Clarke  and  John  Giles. 

It  appeared  from  the  evidence  that  the  prosecutors  desired  a  neigh- 
bor, one  Francis  Moxon,  to  go  to  their  shop  and  purchase  some  articles 
in  order  that  they  might  discover  wliether  the  prisoner  put  the  money 
which  he  received  for  the  goods  sold  into  the  till ;  the  prosecutors  sup- 
pUed  Moxon  with  three  shillings  of  their  own  money  for  this  purpose, 
which  money  they  marked.  Moxon  went  to  the  shop,  bought  the  arti- 
cles, and  paid  the  prisoner  the  three  shillings.  The  prisoner  embezzled 
this  money. 

It  was  urged  on  behalf  of  the  prisoner  that  the  prosecutors  had  con- 
structively the  possession  of  this  money  up  to  the  time  of  the  embezzle- 
ment and  that  they  had  parted  with  nothing  but  the  mere  custody.  The 
prisoner  it  was  contended  might  have  been  indicted  for  larceny  at  com- 
mon law,  but  that  the  statute  did  not  apply  to  cases  where  the  money 
before  its  delivery  to  the  servant  had  been  in  the  masters'  possession 
and  might  legally  be  considered  the  masters'  at  the  time  of  such  deliv- 
ery, as  Moxon  in  this  case  was  the  masters'  agent  and  his  possession 
theirs. 

The  learned  judge  before  whom  this  case  was  tried  thought  it  de- 
served consideration,  and  reserved  the  point  for  the  opinion  of  the 
judges. 

In  Michaelmas  term,  1809,  the  judges  met  and  held  the  conviction 
right,  upon  the  authority  of  Bull's  case,  in  which  the  judges  upon  simi- 
lar facts  held  a  common-law  indictment  could  not  be  supported.  It 
seemed  to  be  the  opinion  of  the  judges  that  the  statute  did  not  apply  to 
cases  which  are  larceny  at  common  law. 


N 


'ylkAy^-v^X.VV/ 


i 


v\     AJ^. '  ^  aJ 


CHAP.  XIV.]  REGINA   V.   CULLUM.  707 


REGINA  V.  CULLUM. 
Crown  Case  Resekved.     1H73. 

[Reported  Law  Reports,  2  Crown  Cases  Reserved,  28] 

Case  stated  by  the  Chairman  of  tlie  West  Kent  Sessions. 

The  prisoner  was  indicted  as  servant  to  George  Smeed  for  stealing 
£2,  the  property  of  his  master. 

The  prisoner  was  employed  by  Mr.  Smeed  of  Sittingbourne,  Kent,  a.<j 
captain  of  one  of  Mr.  Smeed's  barges. 

The  prisoner's  duty  was  to  take  the  barge  with  the  cargo  to  London, 
and  to  receive  back  such  return  cargo  and  from  such  persons  as  bis 
master  should  direct  The  prisoner  had  no  authority  to  select  a  return 
cargo  or  take  any  other  cargoes  but  those  appointed  for  him.  The 
prisoner  was  entitled  by  way  of  remuneration  for  his  services  to  half 
the  earnings  of  the  barge  after  deducting  half  his  sailing  expenses. 
Mr.  Smeed  paid  the  other  half  of  such  expenses.  The  prisoner's  whole 
time  was  in  Mr.  Smeed's  service.  It  was  the  duty  of  the  prisoner  to 
account  to  Mr.  Smeed's  manager  on  his  return  home  after  every  voy- 
age. In  October  last,  b}-  direction  of  Mr.  Smeed,  the  prisoner  took  a 
load  of  bricks  to  London.  In  London  he  met  Mr.  Smeed  and  asked  if 
he  should  not  on  his  return  take  a  load  of  manure  to  Mr.  Pye  of  Cax- 
ton.  Mr.  Smeed  expressly  forbade  his  taking  the  manure  to  Mr.  Pye, 
and  directed  him  to  return  with  his  barge  empty  to  Burhara,  and  thence 
take  a  cargo  of  mud  to  another  place,  Murston.  Going  from  I^indon 
to  Murston  he  would  pass  Caxton.  Notwithstanding  this  prohibition 
the  prisoner  took  a  barge-load  of  manure  from  London  down  to  Mr. 
Pje  at  Caxton,  and  received  from  Mr.  Pye's  men  £4  as  the  freight  It 
was  not  proved  that  he  professed  to  carry  the  manure  or  to  receive  the 
freight  for  his  master.  Tiie  servant  who  paid  the  £4  said  that  lie  paid 
it  to  the  prisoner  for  the  carriage  of  the  manure,  but  that  he  did  not 
know  for  whom.  Early  in  December  the  prisoner  returned  home  to 
Sittingbourne  and  proposed  to  give  an  account  of  his  voyage  to  Mr. 
Smeed's  manager.  The  prisoner  stated  that  he  had  taken  the  bricks  to 
London,  and  had  returned  empt}'  to  Burham,  as  directed  by  Mr.  Smeed, 
and  that  there  he  had  loaded  with  mud  for  Murston. 

In  answer  to  the  manager's  inquiries  the  prisoner  stated  that  he  had 
not  brought  back  any  manure  in  the  barge  from  London,  and  he  never 
accounted  for  the  £4  received  from  Mr.  Pye  for  the  freight  for  the 
manure. 

The  jurj'  found  the  prisoner  guilty  as  servant  to  Mr.  Smeed  of  em- 
bezzling £2. 

The  question  was  whether,  on  the  above  facts,  the  prisoner  coold  be 
properly  convicted  of  embezzlement.  24  «&  25  Vict  c.  96,  §  6^.  enacts 
that  "  Whosoever,  being  a  clerk  or  sen-ant,  or  being  employed  for  the 


708  REGINA  V.   CULLUM.  [CHAP.  XIV. 

purpose  or  in  the  capacity  of  a  clerk  or  servant,  shall  fraudulently  em- 
bezzle any  chattel,  money,  or  valuable  security  which  shall  be  delivered 
to  or  received  or  taken  into  possession  by  him  for  or  in  the  name  or  on 
the  account  of  his  master  or  employer,  or  any  part  thereof,  shall  be 
deemed  to  have  feloniously  stolen  the  same  from  his  master  or  employer, 
although  such  chattel,  money,  or  security  was  not  received  into  the  pos- 
session of  such  master  or  employer  otherwise  than  by  the  actual  pos- 
session of  his  clerk,  servant,  or  other  person  so  employed.  .  .  ." 
No  counsel  appeared  for  the  prisoner. 

M  T.  Smith  (with  him  Moreton  Smith)  for  the  prosecution.  The 
prisoner  received  this  freight  either  "  for"  or  "  on  account  of  his  mas- 
ter or  eraplo3'er,"  and  therefore  is  within  the  terms  of  24  &  25  Vict.  c. 
96,  §  68.  The  words  "  by  virtue  of  such  employment,"  which  were  in 
the  repealed  statutes  relating  to  the  same  offence,  have  been  "  advisedly 
omitted  in  order  to  enlarge  the  enactment  and  get  rid  of  the  decisions 
on  the  former  enactments."  Greaves'  Crim.  Law  Consolidation  Acts, 
p.  117. 

[BoviLL,  C.  J,  An  alteration  caused  by  the  decision  of  Rex  v.  Snow- 
ley,  4  C.  &  P.  390,  which  was  a  case  resembling  the  present  one. 

Blackburn,  J.  How  can  the  money  here  be  said  to  have  been 
received  into  the  possession  of  the  servant  so  as  to  become  the  property 
©f  the  master?] 

The  prisoner  was  exclusively  employed  by  the  prosecutor.  With  his 
master's  barge  he  earned,  and  in  the  capacity  of  servant  received,  £4 
as  freight,  which  on  receipt  by  him  at  once  became  the  property  of  his 
master.     Rex  v.  Hartley,  Russ.  &  Ry.  139. 

[Blackburn,  J.  But  in  this  case  the  servant  was  disobe3'ing  orders. 
Suppose  a  private  coachman  used  his  master's  carriage  without  leave, 
and  earned  half-a-crown  by  driving  a  stranger,  would  the  money  be  re- 
ceived for  the  master  so  as  to  become  the  property  of  the  latter  ?] 

Such  coachman  has  no  authority  to  receive  any  money  for  his  mas- 
ter ;  the  prisoner,  however,  was  entitled  to  take  freight. 

[BoviLL,  C.  J.  He  was  expressly  forbidden  to  do  so  on  this 
occasion.] 

Can  it  be  said  that  he  may  be  guilty  of  embezzlement  if  in  obedience 
of  orders  he  receives  money,  and  yet  not  guilty  of  that  crime  if  he  is 
acting  contrar}'  to  his  master's  commands?  See  note  to  Regina  v. 
Harris,  Dears.  C.  C.  344,  in  2  Russell  on  Crimes,  4th  ed.,  p.  453. 

[Blackburn,  J.  In  suggesting  that  case  to  be  erroneous  the  editor 
seems  to  assume  that  the  decision  proceeded  on  the  words  "  by  virtue 
of  his  emplo3'ment,"  whereas  it  did  not. 

Bramw^ell,  B.  Suppose  the  captain  of  a  barge  let  his  master's  ves- 
sel as  a  stand  to  the  spectators  of  a  boat-race  and  took  pajment  from 
them  for  the  use  of  it?] 

Such  use  would  not  be  in  the  nature  of  his  business. 
[Blackburn,  J.     In  the  note  to  this  section  by  Mr.  Greaves  he 
remarks :  "  Mr.  Davis  (Davis'  Criminal  Statutes,  p.  70),  rightly  says 


CHAP.  XIV.]  REGINA   V.    CULLU.M.  V09 

that  •  this  omission  avoids  this  tochiiicul  distinction  ; '  but  he  adds,  '  still 
it  must  be  the  master's  money  wliich  is  received  by  the  servant,  and 
not  money  wrongfully  received  by  the  servant  by  means  of  false  pre- 
tences.' This  is  plainly  incorrect."  But  in  my  opinion  Mr.  Davis  was 
plainly  correct  and  Mr.  Greaves  wrong.  Keginu  v.  Thorpe,  Dears.  &  B. 
C.  C.  5G2.] 

BoviLL,  C.  J.  In  the  former  act  relating  to  this  offence  were  tiie 
words  "  by  virtue  of  his  employment."  The  phrase  led  to  some  difli- 
cult}' ;  for  example,  such  as  arose  in  Regina  u.  Snowley,  iC  &  I'.  31)0, 
and  Regina  v.  Harris,  Dears.  C.  C.  344.  Therefore  in  the  present 
statute  those  words  are  left  out,  and  §  (JH  requires  instead  that  in  order 
to  constitute  the  crime  of  embezzlement  by  a  clerk  or  servant  the 
*'  chattel,  mone}',  or  valuable  security  .  .  .  shall  be  delivered  to  or 
received  or  taken  into  possession  by  him,  for  or  in  the  name  or  on 
account  of  his  master  or  employer." 

Those  words  are  essential  to  the  definition  of  the  crime  of  embezzle- 
ment under  that  section.  The  prisoner  here,  contrary  to  his  master's 
orders,  used  the  barge  for  his,  the  servant's,  own  purposes,  and  so 
earned  money  which  was  paid  to  him,  not  for  his  master  but  for  him- 
self; and  it  is  expressl}^  stated  that  there  was  no  proof  that  he  pro- 
fessed to  carry  for  the  master,  and  that  the  hirer  at  the  time  of  paying 
the  money  did  not  know  for  whom  he  paid  it.  The  facts  before  us 
would  seem  more  consistent  with  the  notion  that  the  prisoner  was  mis- 
using his  master's  propert}-  and  so  earning  money  for  himself  and  not 
for  his  master.  Under  those  circumstances  the  money  would  not  be 
received  ''  for"  or  "in  the  name  of"  or  "on  account  of"  his  master 
but  for  himself,  in  his  own  name,  and  for  his  own  account.  Mis  act 
therefore  does  not  come  within  the  terms  of  the  statute,  and  the  convic- 
tion must  be  quashed. 

Bramwell,  B.  I  am  of  the  same  opinion.  I  think  in  these  cases  we 
should  look  at  the  substance  of  the  charge  and  not  merely  see  whether 
the  case  is  brought  within  the  bare  words  of  the  Act  of  Parliament. 
Now  the  wrong  committed  by  the  prisoner  was  not  fraudulent  or 
wrongful  with  respect  to  money,  but  consisted  in  the  improper  use  of 
his  master's  chattel.  The  offence  is,  as  I  pointed  out  during  argument, 
only  that  which  a  barge-owner's  servant  might  be  guilty  of,  if  when 
navigating  the  barge,  he  stopped  it,  allowed  persons  to  stand  upon  it  to 
view  a  passing  boat-race,  charged  them  for  so  doing,  and  jwcketed  tlie 
money  they  paid  to  him.  There  is  no  distinction  between  that  case 
and  this  save  that  the  supposititious  case  is  more  evidently  out  of  the 
limits  of  the  statute. 

The  use  of  this  barge  by  the  prisoner  was  a  wrongful  act  yet  not  dis- 
honest in  the  sense  of  stealing.  But  I  will  add  that  I  do  not  think  this 
case  even  within  the  words  of  the  statute.  The  servant  undoubtedly 
did  not  receive  the  money  "  for"  his  master  nor  "  on  account  of"  his 
master  nor  "in  the  name"  of  his  master.  Nevertheless  I  doubt  ex- 
tremely whether  on  some  future  day  great  difficulty  may  not  arise  as  to 


710  EEGINA  V.   BARNES.  [CHAP.  XIV. 

the  meaning  of  these  expressions  in  §  68,  for  I  doubt  whether,  although 
the  servant  had  used  his  master's  name,  he  would  have  been  within  the 
terms  of  the  Act  of  Parliament.  "  In  the  name  of"  his  master  is  a  ver}' 
curious  expression.  Suppose  a  person  in  service  as  a  carter  had  also 
a  horse  and  cart  of  his  own  and  employed  tliem  to  do  some  or  other 
work,  professing  them  to  be  his  master's,  and  received  hire  for  it  "  in 
the  name  of"  his  master,  would  that  be  embezzlement?  Could  he  be 
rightl}'  convicted  under  this  section  ?  I  doubt  it  extremely.  The  words 
"  in  the  name  of"  his  master,  although  inserted  with  a  desire  to  obviate 
difficulties,  seem  to  me  likely  hereafter  to  raise  them.^ 


REGINA  V.  BARNES. 
Devizes  Assizes.     1858. 

[Reported  8  Cox  C.  C.  129.] 

Prisoner  was  indicted  for  that  he  being  the  servant  of  Joseph  Hill 
and  others,  did  embezzle  two  sums  of  £68  10s.,  and  £29  9s.  7c?.,  their 
property. 

Edlin,  for  the  prosecution. 

Cole,  for  the  prisoner. 

It  was  proved  that  prisoner,  who  was  a  coal  and  timber  merchant,  fell 
into  difficulties,  and  made  an  assignment  of  all  his  goods,  effects,  and 
book  debts.  After  the  execution  of  this  assignment,  he  received  the 
two  sums  of  mone}'  in  question,  which  had  been  debts  previously  due 
to  him,  and  he  had  not  accounted  for  the  receipt  of  those  sums.  After 
the  execution  of  the  deed  the  prisoner  had  been  employed  by  the 
trustees,  at  a  salary,  to  conduct  the  business  for  the  benefit  of  the 
trustees. 

Cole  submitted  that  the  debts  being  only  choses  in  action  could  not 
be  assigned  in  law,  they  could  only  be  sued  for  and  recovered  in  the 
prisoner's  name ;  and  in  law  he  was  the  person  entitled  to  receive 
them ;  in  fact,  he  received  his  own  mone3% 

Edlin  contended  that  immediately  on  the  receipt  of  the  money  by  the 
prisoner  it  became  the  property  of  the  trustees,  and  then  the  prisoner 
was  guilty  of  embezzlement. 

Cole,  in  replj'.  Embezzlement  is  the  stopping  of  money  in  transitu 
to  the  employer.  If  rightly  received  by  the  prisoner,  the  keeping  of 
it  afterwards  was  not  embezzlement.  He  could  not  be  guilty  of 
larcen}'  unless  the  money  was  ear-marked,  and  if  ear-marked,  it  was 
the  debt  supposed  to  be  assigned,  but  which  had  not  passed  in  law, 
only  in  equit}'. 

1  Concurring  opinions  of  Blackburn  and  Archibald,  JJ.,  are  omitted.  See  ace.  Eeg. 
V.  Harris,  6  Cox  C.  C.  363;  Reg.  v.  Read,  3  Q.  B.  D.  131 ;  Brady  v.  State,  21  Tex. 
App.  659.     See  ex  parte  Hedley,  31  Gal.  108.  —  Ed, 


CHAP.  XIV.]  COMMONWEALTH   V.    HAYS.  711 

Byles,  J.,  said,  the  difficulty  was  to  make  out  that,  in  point  of  law 
the  prisoner  was  a  clerk,  or  servant,  or  acting  in  the  capaciLv  of  a 
servant  within  the  meaning  of  the  statute.  It  was  clear  thai  the»e 
debts  were  not  assignable  in  law  ;  they  were  choses  in  action,  and  the 
deed  would  only  bind  him  in  equity.  The  moment  he  received  these 
moneys,  they  were  his  own  moneys,  — he  received  what,  in  point  of  law, 
was  his  own  money.  How  then,  could  he  be  guilty  of  cmbezzl.-inenl  \ 
or  how  could  he  ha  said  to  be  clerk  or  servant  to  the  trustees?  He 
could  not,  in  point  of  law,  pass  the  proi)erty  in  the  debU  due  to  him 
before  the  deed  was  executed.  His  assignees  were  only  equitable 
assignees ;  they  could  only  sue  in  his  name.  Tlie  deed  could  only  pass 
that  which  he  actually  had  in  his  possession  at  the  time  the  fh-Jd  was 
executed.  Under  these  circumstances  the  indictment  could  not  be 
sustained. 

The  prisoner  was,  therefore,  acquitted. 


COMMONWEALTH  i-.  HAYS. 
Supreme  Judicial  Coukt  op  Massachusetts.     1858. 

[Reported  14  Gray,  62.] 

Indictment  on  St.  1857,  c.  233,  which  declares  that  "  if  any  person, 
to  whom  any  money,  goods,  or  other  property,  which  may  be  the  sub- 
ject of  larceny,  shall  have  been  delivered,  shall  embezzle,  or  fraudu- 
lently convert  to  his  own  use,  or  shall  secrete,  with  intent  to  embezzle 
or  fraudulently  convert  to  his  own  use,  such  money,  goods,  or  propertv, 
or  any  part  thereof,  he  shall  be  deemed,  by  so  doing,  to  have  committed 
the  crime  of  simple  larceny."  The  indictment  contained  two  counts, 
one  for  embezzlement,  and  one  for  simple  larcen}'. 

At  the  trial  in  the  Court  of  Common  Pleas  in  Middlesex,  at  October 
term,  1858,  before  Aiken,  J.,  Amos  Stone,  called  as  a  witness  by  the 
Commonwealth,  testified  as  follows:  "I  am  treasurer  of  the  Charles- 
town  Five  Cent  Savings  Bank.  On  the  17th  day  of  October,  1857,  the 
defendant  came  into  the  bank,  and  asked  to  draw  his  deposit,  and 
presented  his  deposit  book.  I  took  his  book,  balanced  it,  and  hando<l 
it  back  to  him.  It  was  for  one  hundred  and  thirty  dollars  in  one  item. 
I  then  counted  out  to  him  two  hundred  and  thirty  dollars,  and  said, 
'  There  are  two  hundred  and  thirty  dollars.'  The  defendant  took  the 
money  to  the  end  of  the  counter,  and  counted  it,  and  then  left  the  room. 
Soon  after  the  defendant  had  left,  I  discovered  that  I  had  paid  liim  one 
hundred  dollars  too  much.  After  the  close  of  bank  hours  I  went  in 
search  of  the  defendant,  and  told  him  that  I  had  paid  him  one  hundred 
dollars  too  much,  and  asked  him  to  adjust  the  matter.  The  defendant 
asked  me  how  I  knew  it.     He  asked  me  if  I  could  read.     I  said  '  Yes.' 


712  COMMONWEALTH   V.   HA.YS.  [CHAP.  XIV. 

He  then  showed  me  his  book,  and  said,  '  What  does  that  say?'  I  took 
it,  and  read  in  it  one  hundred  and  thirty  dollars.  The  defendant  then 
said,  '  That  is  what  I  got.'  He  exhibited  two  fifties,  two  tens,  and  a 
ten  dollar  gold  piece,  and  said,  'That  is  what  I  got'  I  then  said  to 
him,  '  Do  you  say  that  is  all  and  precisely  what  I  gave  you  ?  '  He  re- 
plied, •  That  is  what  I  got.'  I  then  said  to  him,  '  I  can  prove  that  you 
got  two  hundred  and  thirty  dollars.'  He  replied, '  That  is  what  I  want ; 
if  you  can  prove  it,  you  will  get  it ;  otherwise,  you  wont.'  I  intended 
to  pay  the  defendant  the  sum  of  two  hundred  and  thirty  dollars,  and  did 
so  pay  him.  I  then  supposed  that  the  book  called  for  two  hundred  and 
thirty  dollars.  Books  are  kept  at  the  bank,  containing  an  account  with 
depositors,  wherein  all  sums  deposited  are  credited  to  them,  and  all 
sums  paid  out  are  charged  to  them." 

The  defendant  asked  the  court  to  instruct  the  jury  that  the  above 
facts  did  not  establish  such  a  delivery  or  embezzlement  as  subjected  the 
defendant  to  a  prosecution  under  the  St.  of  18.57,  c.  233,  and  did  not 
constitute  the  crime  of  larceny. 

The  court  refused  so  to  instruct  the  jury  ;  and  instructed  them  "  that 
if  the  sum  of  two  hundred  and  thirty  dollars  was  so  delivered  to  the 
defendant,  as  testified,  and  one  hundred  dollars,  parcel  of  the  same, 
was  so  delivered  by  mistake  of  the  treasurer,  as  testified,  and  the  de- 
fendant knew  that  it  was  so  delivered  by  mistake,  and  knew  he  was 
not  entitled  to  it,  and  afterwards  the  money  so  delivered  by  mistake 
was  demanded  of  him  by  the  treasurer,  and  the  defendant,  having  such 
knowledge,  did  fraudulently,  and  with  a  felonious  intent  to  deprive  the 
bank  of  the  money,  convert  the  same  to  his  own  use,  he  would  be 
liable  under  this  indictment."  The  jury  returned  a  verdict  of  guilty, 
and  the  defendant  alleged  exceptions. 
iV.  St.  J.  Green,  for  the  defendant. 

S.  H.  Fhillips  (Attorney  General),  for  the  Commonwealth. 
BiGELOW,  J.  The  statute  under  which  this  indictment  is  found  is 
certainly  expressed  in  very  general  terms,  which  leave  room  for  doubt 
as  to  its  true  construction.  But  interpreting  its  language  according  to 
the  subject  matter  to  which  it  relates,  and  in  the  light  of  the  existing 
state  of  the  law,  which  the  statute  was  intended  to  alter  and  enlarge, 
we  think  its  true  meaning  can  be  readily  ascertained. 

The  statutes  relating  to  embezzlement,  both  in  this  country  and  in 
England,  had  their  origin  in  a  design  to  supply  a  defect  which  was 
found  to  exist  in  the  criminal  law.  By  reason  of  nice  and  subtle  dis- 
tinctions, which  the  courts  of  law  had  recognized  and  sanctioned,  it 
was  difficult  to  reach  and  punish  the  fraudulent  taking  and  appropria- 
tion of  money  and  chattels  by  persons  exercising  certain  trades  and 
occupations,  by  virtue  of  which  they  held  a  relation  of  confidence  or 
trust  towards  their  employers  or  principals,  and  thereby  became  pos- 
sessed of  their  property.  In  such  cases  the  moral  guilt  was  the  same 
as  if  the  oflfender  had  been  guilty  of  an  actual  felonious  taking  ;  but  in 
many  cases  he  could  not  be  convicted  of  larceny,  because  the  property 


CHAP.  XIV.]  COMMONWEALTH   r.   HAYS.  713 

which  had  been  fraiululently  converted  wus  lawfully  in  his  possession 
by  virtue  of  his  employiuent,  and  there  was  not  that  technical  taking 
or  asportation  which  is  essential  to  the  proof  of  the  crime  of  larceny. 
The  King  y.  Bazeley,  2  Leach  (-1th  ed.),  835  ;  2  East  P.  C.  oG8. 

The  statutes  relating  to  enil)ezzleiuent  were  intended  to  embrace  this 
class  of  offences  ;  and  it  may  be  said  generally  that  they  do  nut  apply 
to  cases  where  the  element  of  a  breach  of  trust  or  confidence  in  the 
fraudulent  conversion  of  money  or  chattels  is  not  shown  to  exist.  This 
is  the  distinguishing  feature  of  the  provisions  in  the  Rev.  Sts.  c.  126, 
§§  27-30,  creating  and  punishing  the  crime  of  embezzlement,  which 
carefully  enumerate  the  classes  of  persons  that  may  be  subject  to  the 
penalties  therein  provided.  Those  provisions  have  been  strictly  con- 
strued, aiKl  the  operation  of  the  statute  has  been  carefully  confined  to 
persons  having  in  their  possession,  by  virtue  of  their  occupation  or 
em[)loyment.  the  money  or  property  of  another,  which  has  been  fraud- 
ulently converted  in  violation  of  a  trust  reposed  in  them.  Common- 
wealth r.  Stearns,  2  Met.  343  ;  Commonwealth  r.  Libbey,  1 1  Met.  G4  ; 
Commonwealth  v.  Williams,  3  Gray,  4G1.  In  the  last  named  case  it 
was  held,  that  a  person  was  not  guilty  of  embezzlement,  under  Rev. 
Sts.  c.  126,  §  30,  who  had  converted  to  his  own  use  money  which  had 
been  delivered  to  him  b}'  another  for  safe  keeping. 

The  St.  of  1857,  c.  233,  was  probably  enacted  to  supply  the  defect 
which  was  shown  to  exist  in  the  criminal  law  by  this  decision,  and  was 
intended  to  embrace  cases  where  property  had  been  designedly  delivered 
to  a  person  as  a  bailee  or  keeper,  and  had  been  fraudulently  converted 
by  him.  But  in  this  class  of  cases  there  exists  the  element  of  a  trust 
or  confidence  reposed  in  a  person  by  reason  of  the  delivery  of  property 
to  him,  which  he  voluntarily  takes  for  safe  keeping,  and  which  trust  or 
confidence  he  has  violated  b}-  the  wrongful  conversion  of  the  property. 
Beyond  this  the  statute  was  not  intended  to  go.  Where  money  paid  or 
property  delivered  through  mistake  has  been  misappropriated  or  con- 
verted by  the  part}-  receiving  it,  there  is  no  breach  of  a  trust  or  viola- 
tion of  a  confidence  intentionally  reposed  b}'  one  partv  and  voluntarily 
assumed  by  the  other.  The  moral  turpitude  is  therefore  not  so  great 
as  in  those  cases  usuall}'  comprehended  within  the  offence  of  emlx^zzle- 
raent,  and  we  cannot  think  that  the  legislature  intended  to  place  them 
on  the  same  footing.  We  are  therefore  of  opinion  that  the  facts  prove<l 
in  this  case  did  not  bring  it  within  the  statute,  and  that  the  defendant 
was  wrongly  convicted.  Exceptions  sustained.^ 

1  See  Reg.  v.  Robson,  9  Cox  C.  C.  29.  —  Ed. 


714  COMMONWEALTH   V.   BERKY.  [CHAP.  XIV. 


COMMONWEALTH  v.  BERRY. 
Supreme  Judicial  Court  of  Massachusetts.     1868. 

[Reported  99  Alassachusetts,  428.] 

Hoar,  J.^  The  bill  of  exceptions  states  that  this  indictment  was 
found  under  Gen.  Sts.  c.  161,  §  41.  It  seems  to  be  a  good  indictment 
under  that  section,  or  under  §  35  of  the  same  chapter.  Commonwealth 
V.  Concannon,  5  Allen,  506  ;  Commonwealth  v.  Williams,  3  Gray,  461. 
But  the  more  important  question  is,  whether,  upon  the  facts  reported, 
an  indictment  can  be  sustained  for  the  crime  of  embezzlement.  The 
statutes  creating  that  crime  were  all  devised  for  the  purpose  of  punish- 
ing the  fraudulent  and  felonious  appropriation  of  property  which  had 
been  intrusted  to  the  person,  by  whom  it  was  converted  to  his  own  use, 
in  such  a  manner  that  the  possession  of  the  owner  was  not  violated,  so 
that  he  could  not  be  convicted  of  larceny  for  appropriating  it.  Proof 
of  embezzlement  will  not  sustain  a  charge  of  larceny-.  Commonwealth 
V.  Simpson,  9  Met.  138 ;  Commonwealth  v.  Kii>g,  9  Cush.  284.  In  the 
case  last  cited,  it  is  said  by  Mr.  Justice  Dewey  that  "  the  offences  are 
by  us  considered  so  far  distinct  as  to  require  them  to  be  charged  in  such 
terms  as  will  indicate  the  precise  offence  intended  to  be  charged."  "  If 
the  goods  are  not  in  the  actual  or  constructive  possession  of  the  master, 
at  the  time  they  are  taken,  the  offence  of  the  servant  will  be  embezzle- 
ment, and  not  larceny."  We  see  no  reason  why  the  converse  of  the 
proposition  is  not  true,  that,  if  the  property  is  in  the  actual  or  construc- 
tive possession  of  the  master  at  the  time  it  is  taken,  the  ofT'ence  will  be 
larceny,  and  not  embezzlement.  And  it  has  been  so  held  in  England. 
Where  the  prisoner  was  the  clerk  of  A.,  and  received  money  from  the 
hands  of  another  clerk  of  A.  to  pay  for  an  advertisement,  and  kept 
part  of  the  money,  falsely  representing  that  the  advertisement  had  cost 
more  than  it  had ;  it  was  held  that  this  was  larceny  and  not  embezzle- 
ment, because  A.  had  had  possession  of  the  money  by  the  hands  of  the 
other  clerk.     Rex  v.  Murray,  1  Mood.  276  ;  s.  c.  5  C.  &  P.  145.     The 

I  jdistinction  is  between  custody  and  possession.     A  servant  who  receives 
Ifrom  his  master  goods  or  money  to  use  for  a  specific  purpose  has  the 

(/custody  of  them,  but  the  possession  remains  in  the  master. 

The  St.  14  &  15  Vict.  c.  100,  §  13,  provided  that  whenever,  on  the 
trial  of  an  indictment  for  embezzlement,  it  should  be  proved  that  the 
taking  amounted  to  larceny,  there  should  not  be  an  acquittal,  but  a 
conviction  might  be  had  for  larcenj'.  We  have  no  similar  statute  in 
this  Commonwealth. 

In  the  present  case,  the  defendant,  who  was  employed  as  a  servant, 
was  directed  by  one  member  of  the  firm  who  employed  him  to  take  a 
sum  of  money  from  him  to  another  member  of  the  firm.     He  had  the 

1  The  opinion  only  is  given,  it  sufficiently  states  the  case. 


CHAP.  XIV.]  COMMuNWEALTlI    V.    FO.STEU.  715 

custody  of  the  money,  hut  not  any  legal  or  separate  possession  of  iL 
The  possession  remained  in  his  master.  His  Iraudulcut  and  feloni- 
ous appropriation  of  it  was  therefore  larceny,  and  not  embezzlemenU 
Commonwealth  v.  O'Malley,  1)7  Mass.  oH4  ;  Commonwealih  o.  Hays, 
1-i  Gray,  G2  ;  People  v.  Call,  1  Dcnio,  120;  United  States  c  Clew,  4 
Wash.  C.  C.  702. 

In  People  r.  Hennessey,  15  Wend.  147,  cited  for  the  Couiuionwealth, 
the  money  embezzled  hy  the  defendant  had  never  come  into  the  ixjsses- 
sion  of  his  master.  And  in  People  v.  Dalton,  1.0  Wend.  .0«1,  the 
possession   of  the  defendant  was  that  of  a  bailee. 

JExceptioiis  sustained.^ 


COMMONWEALTH  v.  FOSTER. 
Supreme  Judicial  Court  of  Massacuusetts.     1871. 

[Reported  107  Massachusetts,  221.] 

Indictment  for  embezzlement,  found  at  July  term,  1870,  of  the 
Superior  Court  in  Suffolk. 

At  the  trial,  before  Wilkinson,  J.,  John  Langley  testified  that  alniut 
May  13,  1870,  being  in  need  of  money,  he  made  two  promissory  notes 
payable  to  his  own  order  and  indorsed  by  himself,  payable  in  four  and 
six  months  respectively,  for  SI 250  each,  and  delivered  them  to  the  de- 
fendant upon  the  special  agreement  of  the  defendant  to  sell  the  notes 
and  deliver  the  proceeds  to  Nathan  A.  Langley,  a  brother  of  the  wit- 
ness, charging  a  commission  for  his  services  ;  that  at  the  same  time, 
and  as  a  part  of  the  transaction,  the  defendant  gave  to  the  witness,  as 
receipts,  the  defendant's  own  notes  of  the  same  tenor  and  date  as  those 
delivered  to  him  by  the  witness,  which  were  deposited  by  the  witness 
with  his  brother,  to  be  by  him  given  up  to  the  defendant  when  the  lat- 
ter should  deliver  the  proceeds  of  the  witness's  notes  in  pursuance  of 
the  agreement  before  stated ;  and  that  he  did  not  know  whether  tlie 
defendant  was  a  broker  or  not,  and  did  not  deal  with  him  as  such. 

It  further  appeared  that  the  defendant  sold  the  notes  of  John  Lang- 
ley to  one  W^ilson  for  $1000  in  cash,  and  a  mortgage  on  real  estate 
valued  at  $1000;  and  that  he  had  not  delivered  any  part  of  the  pro- 
ceeds to  John  Langley  or  his  brother,  but,  when  asked  for  them  by 
the  former,  replied  that  he  had  used  them  and  was  unable  to  deliver 
them.  It  did  not  appear  that  John  Langley  or  his  brother  had  Wn- 
dered  to  the  defendant  the  notes  given  by  him. 

Upon  the  close  of  the  evidence  for  the  Commonwealth,  the  defend- 
ant demurred  thereto,  as  insulHcient  to  support  a  verdict  of  guilty  ;  but 
the  judge  overruled  the  demurrer.  The  defendant  then  testified  that 
he  was  a  real  estate  broker ;   and  that  he  negotiated  the  notes  in  the 

1  Ace.  Rex  V.  Sullens,  1  Moo.  C.  C.  129;  Reg.  v.  Maaters,  3  Cox  C  C  178.  — Eu. 


716  PEOPLE   V.   HURST.  [CHAP.  XIV. 

manner  testified  to  by  John  Langley,  and  used  the  money,  partly  in 
business  as  a  provision  dealer,  in  which  he  was  also  engaged  at  the 
time,  and  partly  in  paying  his  debts. 

The  judge  thereupon  instructed  the  jury  "  that  it  was  a  question  of 
fact,  for  them  to  decide  upon  the  evidence,  whether  John  Langley 
employed  the  defendant  as  a  broker ;  that  if  the  defendant  was  em- 
ployed merely  to  sell  the  notes,  receive  the  proceeds  and  pay  over  the 
same  specifically  to  the  brother,  without  any  authority  to  mix  them 
with  his  own  funds,  a  fraudulent  conversion  of  them  would  be  em- 
bezzlement ;  but  that  if  he  was  employed  as  a  broker,  to  negotiate  the 
notes  in  the  course  of  his  business,  with  authority,  derived  from  the 
nature  of  that  business  or  otherwise,  to  mix  the  proceeds  as  aforesaid, 
his  use  of  them  would  not  be  embezzlement."  The  jury  returned  a 
verdict  of  guilty,  and  the  defendant  alleged  exceptions. 

C.  R.  Train,  for  the  defendant. 

C.  Alle?}.,  Attorney  General,  for  the  Commonwealth. 

By  the  Court.  Under  the  instructions  given  them,  the  jury  must 
have  found  that  the  defendant  was  an  agent  within  the  statute,  and 
embezzled  his  employer's  money.  The  notes  given  by  him  appear  to 
have  been  given  to  answer  the  purpose  of  receipts,  and  not  for  the 
purpose  of  transferring  to  him  any  property  in  the  notes  received  by 
him,  or  the  money  received  by  him  on  the  sale  of  the  notes.  Com- 
monwealth V.  Stearns,  2  Met.  343  ;  Commonwealth  v.  Libbey,  11 
Met.  64.  Exceptions  overruled.^ 


PEOPLE  V.  HURST. 
Supreme  Court  of  Michigan.     1886. 

[Reported  62  Michigan,  276.] 

Campbell,  C.  J.  Respondent  was  convicted  of  embezzling  $275, 
alleged  to  have  been  put  in  his  hands  by  one  Lena  J.  Smith  as  her 
agent.  Respondent  was  a  lawyer,  and  also  engaged  more  or  less  in 
renting  houses.  Mrs.  Smith  formed  his  acquaintance  while  seeking  to 
rent  a  house.  She  got  him  to  lend  $400  for  her,  which  he  did  on  mort- 
gage. She  further  said  she  had  $1,100  more  to  lend.  He  said  he  had 
a  place  for  $700,  which  he  actually  lent  on  first  mortgage.  He  also 
showed  her  a  letter  from  a  man  who  had  a  parcel  of  forty  acres  of 
land  to  sell,  and  he  wanted  her  to  give  him  the  money  to  buy  it,  as 
he  knew  of  a  purchaser  who  would  buy  at  an  advance.  She  handed 
him  $400  to  buy  the  land,  and  said  he  might  have  the  profit.  He  told 
her  where  the  land  was,  but  she  could  not  remember,  and  did  not  tes- 

i  See  Mulford  u.  People,  139  111.  586.  — Ed. 


CHAT.  XIV.]  PEOPLE    V.    IIURST.  7:7 

tify  upon  that  point.  This  was  on  March  31,  lfi82.  The  embezzle- 
ment is  charged  as  of  that  day. 

About  the  middle  of  April  she  saw  him  at  his  house,  intoxicatecl. 
She  asked  iiim  lor  her  papers,  and  if  he  had  invested  tlie  money,  and 
he  shook  his  head,  and  said  he  had  been  "on  a  drunk."  She  asked 
for  her  money,  and  he  gave  her  8100,  and  a  chattel  mortgage  whieh 
he  owned  for  S2o.  She  asked  iiiui  if  tliat  was  all  he  had,  and  he  said 
it  was,  and  promised  to  pay  the  balance  in  a  mouth  or  two,  and  aski-d 
her  to  wait  on  him.  She  called  on  him  frequently,  and  in  the  fall  he 
conveyed  to  her  forty  acres  of  laud  in  Cheboygan  County  as  security 
until  he  could  pay  her.  lie  said  he  was  selling  some  land  for  a  laily 
in  Spriugwells  ;  and,  if  he  succeeded,  his  coujmissions  w<;uld  exceed 
his  debt  to  her,  and  he  would  pay  her,  and  she  coidd  return  the  deed, 
•which  she  need  not  record,  but  he  would  pay  for  recording.  She 
agreed  to  wait  on  him,  and  hold  the  deed  as  security  a  little  longer, 
until  he  could  sell  the  twenty-five  acres  referred  to.  She  subsequently 
dunned  him  frequently,  and,  finding  he  had  an  interest  in  a  patent 
right,  asked  him  to  assign  that  to  her  as  security,  which  he  did. 

There  was  some  other  testimony  which  was  material,  in  favor  of 
defendant,  on  whieh  his  counsel  made  some  points,  which  wc  do  not 
now  think  it  necessary  to  decide. 

In  our  opinion,  the  testimony  did  not  make  out  a  case  of  endiez/.le- 
ment.  Before  tluit  offence  can  be  made  out,  it  must  distinctly  appear 
that  the  respondent  has  acted  with  a  felonious  intent,  and  made  an  in- 
tentionally wrong  disposal,  indicating  a  design  to  cheat  and  deceive 
the  owner.  A  mere  failure  to  pay  over  is  not  enough  if  that  intent  is 
not  plainly  apparent.  This  was  decided  in  People  v.  Galland,  o.>  Mich. 
628.  See  also  Reg.  v.  Norman,  1  C.  &  M.  501  ;  Keg.  r.  Creed,  1  C. 
&  K.  63  ;  Rex  v.  Hodgson,  3  C.  «&  P.  422  ;  2  Russ.  Cr.  \^2  ;  2  Bish. 
Crim.  Law,  §§  376,  377. 

In  this  case  there  was  nothing  indicating  concealment  or  a  felonious 
disposition.  A  candid  admission  was  made  at  once  on  impiiry,  and 
partial  payment  was  made  and  security  given  at  different  times,  when 
asked.  The  debt  was  admitted  and  recognized  as  a  debt  on  l>oth 
sides.  Whatever  wrong  may  have  been  done,  there  was  no  embezzle- 
ment proven. 

The  conviction  must  be  quashed,  and  the  court  below  advised  to 
discharge  the  prisoner. 

The  other  justices  concurred.^ 


1  Ace.  People  v.  Wadsworth,  63  Mich.  500.  —  Ea 


OM' 


I 


718  EEGINA  V.   KILHAM.  [CHAP.  XV. 


CHAPTER  XV. 
OBTAINING  PROPERTY  BY  FALSE  PRETENCES. 


SECTION  I. 

The  Question  of  Title. 

REGINA  V.   KILHAM. 

Crown  Case  Reserved.     1870. 

[Reported  Lmw  Repoi-ts,  1  Crown  Cases  Reserved,  261.] 

Case  stated  by  the  Recorder  of  York. 

Indictment  under  24  &  25  Vict.  c.  96,  §  88,  for  obtaining  goods  by 
false  pretences. 

The  prisoner  was  tried  at  the  last  Easter  Quarter  Sessions  for  York. 
The  prisoner,  on  the  19th  of  March  last,  called  at  the  livery  stables  of 
Messrs.  Thackray,  who  let  out  horses  for  hire,  and  stated  that  he  was 
sent  by  a  Mr.  Gibson  Hartley  to  order  a  horse  to  be  ready  the  next 
morning  for  the  use  of  a  son  of  Mr.  Gibson  Hartley,  who  was  a  cus- 
tomer of  the  Messrs,  Thackray.  Accordingly,  the  next  morning  the 
prisoner  called  for  the  horse,  which  was  delivered  to  him  by  the  hostler. 
The  prisoner  was  seen,  in  the  course  of  the  same  day,  driving  the 
horse,  which  he  returned  to  Messi's.  Thackray's  stables  in  the  even- 
ing. The  hire  for  the  horse,  amounting  to  7s.,  was  never  paid  by  the 
prisoner. 

The  prisoner  was  found  guilty. 

The  question  was,  whether  the  prisoner  could  properly  be  found 
guilty  of  obtaining  a  chattel  by  false  pretences  within  the  meaning  of 
24  &  25  Vict.  c.  96,  §  88. 

The  case  of  Regina  v.  Boulton,  1  Den.  C.  C.  508,  was  relied  on  on 
the  part  of  the  prosecution. 

The  case  was  argued  before  Bovill,  C.  J.,  Willes,  Byles,  and 
Hannen,  JJ.,  and  Cleasby,  B. 

May  7.     No  counsel  appeared  for  the  prisoner. 

Simpson,  for  the  prosecution.^ 

1  The  argument  is  omitted. 


^^^'^'  ^0  KEGINA   V.    KILIIAM.  719 

BoviLL,  C.  J.  We  are  of  opinion  that  the  conviction  in  thiH  ca«e 
cannot  be  supported.  Tlie  Stat.  21  &  ->:,  Viet.  c.  'M),  §  «m,  enacts 
that,  -  whosoever  shall,  by  any  false  pretence,  obtain  from  any 
other  person  any  chattel,  money,  or  valuable  securitv,  with  inU-nt  to 
defraud,  shall  be  guilty  of  misdemeanor."  The  word  ''  obtain  "  in 
this  section  does  not  mean  obtain  the  loan  of,  but  obtain  th.-  property 
in,  any  chattel,  etc.  This  is,  to  some  extent,  indicated  by  ti>e  pro- 
viso, that  if  it  be  proved  that  the  person  indicted  obtained  the  prop- 
erty in  such  manner  as  to  amount  in  law  to  larceny,  he  shall  not,  by 
reason  thereof,  be  entitled  to  be  acquitted  ;  but  it  is  made  more  clear 
by  referring  to  the  earlier  statute  from  which  the  language  of  §  m  is 
adopted.  7  &  8  G.  IV.  c.  29,  §  53,  recites  that  "a  failure  of  jus- 
tice frequently  arises  from  the  subtle  distinction  between  '  larceny 
and  fraud,'"  and  for  remedy  thereof  enacts  that  "if  any  person 
shall,  by  any  false  pretence,  obtain,"  etc.  The  subtle  distinction 
which  the  statute  was  intended  to  remedy  was  tliis  :  Th:it  if  a  person 
by  fraud  induced  another  to  part  with  the  possession  oulyofgooils 
and  converted  them  to  his  own  use,  this  was  larceny ;  while  if  he 
induced  another  by  fraud  to  part  with  the  property  in  the  goods  as  well 
as  the  possession,  this  was  not  larceny. 

But  to  constitute  an  obtaining  by  false  pretences  it  is  efpially  essen- 
tial, as  in  larceny,  that  tliere  shall  be  an  intention  to  deprive  the 
owner  wholly  of  his  property,  and  this  intention  did  not  exist  in  the 
case  before  us.  In  support  of  the  conviction  the  case  of  Regina  '•. 
Boulton  was  referred  to.  There  the  prisoner  was  indicted  for  obtain- 
ing by  false  pretences  a  railway  ticket  with  intent  to  defraud  the  com- 
pany. It  was  held  that  the  prisoner  was  rightly  convicted,  though 
the  ticket  had  to  be  given  up  at  the  end  of  the  journey.  The  reasons 
for  this  decision  do  not  very  clearly  appear,  but  it  may  be  distin- 
guished from  the  present  case  in  this  respect,  —  that  the  prisoner,  by 
using  the  ticket  for  the  purpose  of  travelling  on  the  railway,  entirely 
converted  it  to  his  own  use  for  the  only  purpose  for  which  it  was 
capable  of  being  applied.  In  this  case  the  prisoner  never  intended  to 
deprive  the  prosecutor  of  the  horse  or  the  property  in  it,  or  to  ai)pro- 
priate  it  to  himself,  but  only  intended  to  obtain  the  use  of  the  horse 
for  a  limited  time.     The  conviction  must  therefore  be  quashed. 

Oniriction  quashed.^ 

1  See  Reg.  v.  Watson,  7  Cox  C  C  364.  —  Ed. 


^  i^^ 


720  BEX  V.  ADAMS.  [chap.  XT. 


REX  V.   ADAMS. 

Crown  Case  Reserved.     1812. 

[Reported  Russell  ^  Ryan,  225.] 

The  prisoner  was  tried  before  Mr.  Justice  Chambre,  at  the  Lent 
Assizes  held  at  Taunton,  in  the  year  1812,  for  a  grand  larceny  in 
stealing  a  hat,  stated  in  one  count  to  be  the  property  of  Robert  Beer 
and  in  another  count  to  be  the  property  of  John  Paul. 

The  substance  of  the  evidence  was,  that  the  prisoner  bought  a  hat 
of  Robert  Beer,  a  hat-maker  at  Ilminster.  That  on  the  18th  of  Janu- 
ary he  called  for  it,  and  was  told  it  would  be  got  ready  for  him  in  half 
an  hour,  but  he  could  not  have  it  without  paying  for  it. 

While  he  remained  with  Beer,  Beer  showed  him  a  hat  which  he  had 
made  for  one  John  Paul ;  the  prisoner  said  he  lived  next  door  to  him, 
and  asked  when  Paul  was  to  come  for  his  hat,  and  was  told  he  was  to 
come  that  afternoon  in  half  an  hour  or  an  hour.  He  then  went  away, 
saying  he  would  send  his  brother's  wife  for  his  own  hat. 

Soon  after  he  went  he  met  a  boy  to  whom  he  was  not  known.  The 
prisoner  asked  the  boy  if  he  was  going  to  Ilminster,  and  being  told 
that  he  was  going  thither,  he  asked  him  if  he  knew  Robert  Beer  there, 
telling  him  that  John  Paul  had  sent  him  to  Beer's  for  his  hat,  but 
added  that  as  he,  the  prisoner,  owed  Beer  for  a  hat  which  he  had  not 
money  to  pay  for,  he  did  not  like  to  go  himself,  and  therefore  desired 
the  boy  (promising  him  something  for  his  trouble)  to  take  the  message 
from  Paul  and  bring  Paul's  hat  to  him  the  prisoner ;  he  also  told  him 
that  Paul  himself,  whom  he  described  by  his  person  and  a  peculiarity 
of  dress,  might  perhaps  be  at  Beer's,  and  if  he  was  the  boy  was  not  to 
go  in. 

The  prisoner  accompanied  him  part  of  the  way,  and  then  the  boy 
proceeded  to  Beer's,  where  he  delivered  his  message  and  received  the 
hat,  and  after  carrying  it  part  of  the  way  for  the  prisoner  by  his 
desire,  the  prisoner  received  it  from  him,  saying  he  would  take  it  him- 
self to  Paul. 

The  fraud  was  discovered  on  Paul's  calling  for  his  hat  at  Beer's, 
about  half  an  hour  after  the  boy  had  left  the  place  ;  and  the  prisoner 
was  found  with  the  hat  in  his  possession  and  apprehended. 

From  these  and  other  circumstances,  the  falsity  of  the  prisoner's 
representation  and  his  fraudulent  purpose  were  sufficiently  established  ; 
but  it  was  objected  on  the  part  of  the  prisoner  that  the  offence  was  not 
larceny,  and  that  the  indictment  should  have  been  upon  the  statute 
for  obtaining  goods  by  false  pretences. 

The  prisoner  was  convicted,  but  the  learned  judge  forbore  to  pass 
sentence,  reserving  the  question  for  the  opinion  of  the  judges. 


BECT.  II.]  REOIN'A    V.    ROBINSON.  7'Jl 

In  Easter  term,  2')th  of  Ai)ril,  lftl2,  all  the  judges  were  preHtnt 
(except  I.onl  KlleiiU>rougli,  M:inH(ii-l.|,  C.  .1.,  ami  Luwrt-iice,  J.\  wlii'tj 
tlicy  lield  tliat  the  conviction  was  wrong  ;  thai  it  waa  not  larceny,  but 
obtaining  goods  under  a  false  pretence.' 


SKCTION    11. 
Property. 

REGINA   V.    HOIUNSON. 
Crown  Case  liEtiKuvbD.     1859. 

[Reported  IMl  C.  C.  M.] 

TiiK  following  case  was  reserved  by  the  Recorder  of  Liverpool. 

The  prosecutor,  who  resided  at  Hartlepool,  was  the  owner  of  two 
dogs,  which  he  advertised  for  sale.  The  prisoner,  Samuel  Robinson, 
having  seeu  the  advertisement,  made  application  to  the  prosecutor  to 
have  the  dogs  sent  to  him  at  Liverpool  <jn  trial,  fal.scly  pretending  that 
he  was  a  person  who  kept  a  nian-servant.  By  this  pretence  tlie  prose- 
cutor was  induced  to  send  the  dogs  to  Liverpool,  and  the  prisoner 
there  obtained  possession  of  them  with  intent  to  defraud,  and  sold 
them  for  his  own  benefit.  The  dogs  were  Pointers,  useful  for  the 
pursuit  of  game,  and  of  the  value  of  £5  each. 

At  the  Liverpool  Borough  Sessions,  holden  in  December,  18.'»H,  the 
prisoner  was  indicted,  convicted,  and  sentenced  to  seven  years  penal 
servitude,  under  the  statute  7  «fe  8  G.  IV.  c.  29,  s.  53. 

On  behalf  of  tlie  prisoner  a  question  was  reserved  and  is  now  sub- 
mitted for  the  consideration  of  the  justices  of  either  bench  and  barons 
of  the  Exchequer,  viz.,  whether  the  said  dogs  were  chattels  within  the 
meaning  of  the  said  section  of  the  statute,  and  whether  the  prisoner 
was  riglitly  convicted. 

The  prisoner  remains  in  Liverpool  Borough  Gaol  under  the  sentence 
passed  at  Sessions. 

Gilbert  IIeki>ersom, 

Recorder  of  Liverpool. 

This  case  was  argued,  on  January  29,  lft50.  before  Lord  Campbell. 
C.  J.,  Martin  B.,  Crowder,  J.,  Wiiies,  J.,  and  Watson,  B. 
Brett  appeared  for  the  Crown,  and  Littler  for  the  prisoner.' 

»  Ace.  Re^.  V.  Rntclipr,  P  Cox  C.  C.  77;  People  i*.  Johnson,  12  .lohnn.  292.  Anil 
see  Com.  v.  .Teffrics,  7  All.  .^48  See  the  jndpment  of  Clo.vbv.  B  .  in  Rpc.  r.  Mi<»dl^ 
ton,  L.  R.  2  C.  C.  38,  nntr.  As  to  tho  titlo  to  property  oht.iitio.l  l.y  in.ho  prft.>nr«««  •«sr 
Lindsay  v.  Cundy,  1  Q.  B.  D.  348,  2  Q.  B.  n.  96.  3  A  pp.  Cas.  459 ;  Bentltv  v.  \  ilinoat, 
12  App.  Cas.  471.  — Ed. 

"  Arguments  of  counsel  are  omitted. 

46 


722  PEOPLE    V.    THOMAS.  [CHAP.  XV. 

Lord  Campbell,  C.  J.  It  is  admitted  that  dog-stealing  is  not 
larceny  at  common  law,  and  a  specific  pimisliment  of  a  milder  charac- 
ter has  been  enacted  by  the  later  statute,  which  makes  the  offence 
a  misdemeanor.  That  being  so,  it  would  be  monstrous  to  say  that 
obtaining  a  dog  by  false  pretences  comes  within  the  statute  7  &  8  G. 
IV.  c.  2y,  s.  53,  by  which  the  offender  is  liable  to  seven  years  penal 
servitude.  My  brother  Coleridge  used  to  say  that  no  indictment 
would  lie  under  that  section  unless,  if  the  facts  justified  it,  the  pris- 
oner could  be  indicted  for  larceny,  and  that  is  now  my  opinion. 

Martin,  B.  I  think  this  conviction  cannot  be  sustained.  The 
question  is  one  entirely  of  the  construction  of  the  statute. 

WiLLES,  J.  From  the  Year  Books  downwards,  including  the  case 
of  Swans,  7  Rep.  15  b,  dogs  have  always  been  held  not  to  be  the  sub- 
ject of  larceny  at  common  law. 

The  other  learned  judges  concurred. 

Conviction  quashed.^ 


PEOPLE   V.   THOMAS. 
Supreme  Court  of  New  York.     1842. 

[Reported  3  Hill,  169.] 

Certiorari  to  the  Oneida  General  Sessions,  where  Thomas  was  con- 
victed of  obtaining  money  by  false  pretences,  of  one  Jones.  The  case 
turned  upon  the  sufHciency  of  the  indictment,  which  charged  substan- 
tially the  following  facts :  Jones,,  having  executed  his  negotiable  note 
to  Thomas  for  $28.28,  dated  the  19th  of  February,  1838,  and  payable 
one  day  after  date,  the  latter,  in  March  afterward,  called  for  payment, 
falsely  pretending  to  Jones  that  the  note  had  either  been  lost  or 
burned  up  :  by  which  false  pretences  Thomas  unlawfully,  etc.,  obtained 
from  Jones  the  sum  of  $28.28,  with  intent  to  cheat  and  defraud  Jones  ; 
whereas  in  truth,  etc.,  the  note  had  not  been  lost  or  burned  up,  all 
which  the  said  Thomas,  when  he  made  the  false  pretence  and  obtained 
the  money,  well  knew,  etc. 

Evidence  was  given,  at  the  trial,  of  the  above  facts ;  and  also,  that 
in  March,  1840,  Thomas  negotiated  the  note,  for  value,  to  one  Anson 
Shove,  without  apprizing  the  latter  that  it  had  been  paid.  The  court 
below  instructed  tlie  jury  that  the  proof  was  sufficient  to  convict ;  to 
which  the  defendant's  counsel  excepted.  A  verdict  was  rendered, 
finding  the  defendant  guilty. 

C.  Tracy,  for  the  defendant. 

T.  Jenkins  (district  attorney),  contra. 

Per  Curiam.     Non  constat  from  the  indictment,   that  Jones  sus- 
tained any  damage  by  the  false  representation  ;  nor  that  there  was  aa 
1  Ace.  State  v.  Barrows,  11  Ire.  477.  —  Ed. 


SECT.  II.]  STATE    I'.    BLACK.  723 

intent  ou  the  purt  of  Thoinas,  at  the  time  of  tlic  rcprcBentution,  to 
work  auy  cUun:ii,^e.  The  note  wiis  due  ;  and  payment  nnide.  TIuh 
was  the  only  consequence  —  a  tliinj;  wliicii  Jones  was  lK>und  to  do. 
A  false  representation,  by  whicii  a  man  n)ay  lie  cheated  into  his  duty, 
is  not  within  the  statute.  It  was  said  in  art,'iimcnt  that  the  HuhMLMpient 
negotiation  of  the  note  hy  'I'homas  ol)viated  the  dilllculties  adverUMJ 
to.  Tiie  note  being  over  due  when  the  latter  fact  took  phu-e,  it  in 
dilllcult  to  see  judicially,  that  Jones  would  be  injured  by  it.  Whether 
he  would  or  wotdd  not,  is  n»erely  speculative,  depending  on  his  pr<:- 
caution  in  providing  himself  with  proper  evidence.  It  is  enough, 
however,  to  say  that  the  indictment  does  not  charge  tlie  subHequent 
act  of  negotiation  as  entering  into  the  defendant's  design  when  be 
made  the  representation  ;  nor  is  the  act  itself  even  mentioned. 

New  trial  ordered.^ 


STATE  V.   BLACK. 
Supreme  Court  of  Wisconsin.     1890. 

[Reported  7,5   W'isroii.sin,  4'JO.] 

Cassoday,  J.'  Sec.  4423,  R.  S.,  punishes  the  obtaining  of  property 
or  a  signature  under  the  circumstances  therein  mentioned.  The  ques- 
tion here  presented  relates  entirely  to  the  obtaining  of  property.  .So 
much  of  that  section  as  pertains  to  that  question  reads  :  "  Any  [)erson 
who  shall  desk/nedly^  by  any  false  pretense,  or  by  any  privy  or  false 
token,  and  with  intent  to  defraud,  obtain  from  any  other  person  any 
money,  goods,  wares,  merchandise,  or  other  property,  .  .  .  shall  Ik; 
punished,"  etc.  To  sustain  a  conviction  under  this  section  four  things 
must  concur.  It  sufficiently  appears  from  the  record  that  three  of 
those  things  co-existed  in  the  case  at  liar,  —  that  is  to  say  it  sufficiently 
appears  that  the  defendant  (1)  "designedly,"  (2)  by  means  of  the 
false  pretense  mentioned,  (3)  "  and  with  intent  to  defraud,"  obtained 
the  board  and  lodging  mentioned.  The  only  question,  therefore, 
requiring  consideration  here  is  whether  the  ol»taining  of  such  board 
and  lodging  was,  in  legal  effect,  the  obtaining  of  "  money,  goods, 
wares,  merchandise,  or  other  projiert^/,"  within  the  meaning  of  the 
section. 

From  the  very  wording  of  the  statute  it  is  manifest  that  no  complete 
offense  can  be  committed  under  it  until  the  "  money,  goo<ls,  wares, 
merchandise,  or  other  pro|)erty,"  is  actually  obtained  by  the  offender. 
This  being  so,  it  is  equally  obvious  that  if  the  statute  applies  U)  the 
obtaining  of  board  and  lodging,  then  each  meal  of  l>oard  obtained 
constitutes  a  separate  offense ;  and  the  same  would  be  true  of  each 

1  Ace.  In  re  Cameron,  44  Kas.  64  ;  Com.  r.  McDuffy,  li'C  Mrm.  467.  —  F.r>. 
*  The  opinion  only  is  given  ;  it  sufficiently  states  the  ca«o. 


724  STATE   V.   BLACK.  [CHAP.  XV. 

night's  lodging.  If  the  section  applies  to  board  and  lodging,  then, 
for  the  same  reason,  it  would  apply  to  almost  any  service  or  use. 
Another  serious  difficulty  with  such  application  in  the  case  at  bar  is 
the  absence  from  the  record  of  any  certain  and  definite  description  of 
the  property  actually  obtained.  Many  of  the  authorities  hold  that  in 
the  information  or  indictment  in  such  cases,  "  the  property  should  be 
described  with  as  much  accuracy  and  particularity  as  in  indictments 
for  larceny."  State  v.  Kube,  20  Wis.  225  ;  s.  c.  91  Am.  Dec.  395. 
Where  the  description  of  the  property  is  uncertain,  the  defect  is  fatal. 
Ibid.  We  are  to  remember  that  it  is  a  criminal  statute  we  are  con- 
struing. It  should  not  be  so  construed  as  to  multiply  crimes,  unless 
required  by  the  context.  The  word  "property"  is,  in  many  cases, 
construed  to  include  "  things  in  action  and  evidences  of  debt."  8ubd. 
3,  4,  sec.  4972,  R.  S.  But  the  words  "  other  property,"  in  the  statute 
quoted,  must,  under  the  familiar  rule,  noscitar  a  sociis,  be  limited  to 
such  tangible  classes  of  property  as  are  therein  previously  enumerated  ; 
that  is  to  say,  "  money,  goods,  wares,  merchandise,  and  other  prop- 
erty "  of  that  description.  This  rule  has  frequently  been  applied  by 
this  court,  especially  to  penal  statutes.  Jensen  v.  State,  60  Wis. 
582,  and  cases  there  cited.  See,  also,  Gibson  v.  Gibson,  43  Wis.  33  ; 
Estate  of  Kirkendall,  43  Wis.  179  ;  Kelley  v.  Madison,  43  Wis.  645. 

The  principle  governing  the  case  at  bar  is  somewhat  similar  to  that 
involved  in  People  v.  Haynes,  14  Wend.  546  ;  s.  c.  28  Am.  Dec.  530. 
In  that  case  merchandise  was  purchased,  and  placed  by  the  seller  in  a 
box,  marked  with  the  buyer's  name  and  address,  and  delivei'ed  to  the 
carrier  named  by  the  purchaser,  to  be  delivered  at  his  residence ;  but 
the  seller,  before  delivering  the  shipper's  receipt  and  invoice,  having 
learned  that  the  purchaser  was  embarrassed,  asked  him  in  regard 
thereto,  whereupon  the  buyer  made  false  and  fraudulent  represen- 
tations as  to  his  condition,  and,  in  consequence  thereof,  the  seller 
delivered  to  the  buyer  the  shipper's  receipt  and  invoice,  and  did  not 
stop  the  goods  in  transitu ;  and  it  was  held  that  the  buyer  was  not 
criminally  liable  for  obtaining  the  goods  by  false  pretenses,  since  the 
goods  were  in  law  obtained  when  they  were  delivered  to  the  carrier, 
which  was  before  the  false  pretenses  were  made. 

The  construction  of  the  statute  indicated  has  additional  force  from 
the  fact  that  the  same  section  punishes  the  obtaining  by  false  pretenses 
of  a  signature  to  a  written  instrument,  the  false  making  whereof  would 
be  punishable  as  forgery.  Sec.  4423,  R.  S.  This  clearly  covers  some 
"  things  in  action  and  evidences  of  debt,"  and  by  necessary  implica- 
tion excludes  others,  as,  for  instance,  a  mere  credit,  as  here.  We 
must  hold  that  the  words  "or  other  property"  do  not  include  the 
mere  obtaining  of  board  and  lodging  under  the  circumstances  stated. 

The  result  is  that  the  first  question  propounded  is  answered  in  the 
negative.     This  renders  it  unnecessary  to  answer  the  second  question. 

By  the  Court.  Ordered  accordingly} 

1  Ace.  Reg.  V.  Gardner,  7  Cox  C.  C.  136.  — Ed. 


SECT.  III.J  ItCX   V.   GOODHALL.  725 

SECTION   III. 

The  Pretence. 

REX  V.   GOODHALL. 
Crown  Cask  Resekveu.     1821. 

[Reported  Russell  ^-  Rynn,  4f.l.] 

The  prisoner  was  tried  before  Mr.  I5:iroii  C; arrow,  at  the  StafTonl 
summer  Assizes,  in  the  year  1Sl>1,  on  an  indietineiit,  ehargiiig  that  ho, 
being  an  ill-desiguing  person,  and  a  common  cheat,  and  intending  to 
cheat  and  defraud  one  Thomas  Perks,  of  his  goods,  M-arcs,  and  mer- 
chandizes, on  the  17th  of  August,  1^21,  at  the  parish  of  NVolverhami)- 
ton  ;  unlawfully,  knowingly,  and  designedly,  did  falsely  pretend  that 
if  he,  the  said  Thomas  Perks,  would  sell  to  him.  the  prisoner,  the  car- 
cases of  three  sheep  and  two  legs  of  veal,  and  send  the  same  to  him 
at  Blonwick,  he,  the  said  prisoner,  would  pay  for  the  same  on  delivery, 
and  send  the  money  back  by  the  servant  of  the  said  Thomas  Perks ; 
by  which  said  false  pretences,  he,  the  said  prisoner,  did  otttain  from 
the  said  Thomas  Perks  two  hundred  and  twenty  pounds  weight  of 
mutton,  value  £4,  and  thirty  pounds  weight  of  veal,  value  lO.s.,  his 
property,  with  intent  to  cheat  him  of  the  same.  Whereas,  in  trutli 
and  in  fact,  the  said  prisoner  did  not,  at  the  time  of  buying  the  said 
carcases  and  legs  of  veal,  intend  to  pay  for  the  same  on  dflivery. 
And  whereas,  in  truth  and  in  fact,  the  said  prisoner  did  not  i)ay  for 
the  same  on  delivery.  And  whereas,  in  truth  and  in  fact,  the  said 
prisoner  did  not  send  the  money  for  the  same  back  by  the  servant  of 
him  the  said  Thomas  Perks,  against  the  form  of  the  statute,  «S:c. 

It  appeared  in  evidence,  that  the  prosecutor,  Tliom.as  Perks,  was  a 
butcher  at  "Wolverhampton;  and  that,  on  the  17th  of  August,  IH-J], 
the  prisoner  came  to  his  shop  to  purchase  three  sheep  and  two  legs  of 
veal ;  on  being  told  by  the  prosecutor  that  he  would  not  trust  him,  he 
promised  the  prosecutor,  if  he  would  send  the  sheep  and  veal  in  good 
time  on  the  following  morning,  he  would  remit  the  money  back  by  the 
bearer. 

The  meat  was  accordingly  sent  on  the  18th  of  August,  by  the  prose- 
cutor, and  delivered  to  the  prisoner  by  the  ])rosecutor's  servant,  who 
asked  him  for  the  money  ;  and  said,  if  he  did  not  give  it  him,  he  must 
take  the  meat  back  again.  The  prisouor  replied,  "Aye,  sure  I"  and 
wrote  a  note ;  and  told  the  prosecutor's  servant  to  take  it  to  his  mas- 
ter, and  it  would  satisfy  him.  The  note  (of  which  the  following  is  a 
copy)  was  delivered  to  the  prosecutor  by  his  servant :  — 

"Mr.  Perks,  Sir,  I  have  a  bill  of  AValsall  bank,  wliich  is  a  very 
good  one,  if  you  will  send  me  the  change,  or  I  '11  see  you  on  Wednesday 
certain."  "  Your's,  M.  G." 


726  KEX   V.   WAKELING.  [CHAP.  XV. 

The  jury  found  the  prisoner  guilty  ;  and  said  they  were  of  opinion, 
that  at  the  time  the  prisoner  applied  to  Perks,  he  knew  Perks  would 
not  part  with  the  meat  without  the  money ;  and  that  he  promised  to 
send  back  the  money  to  obtain  the  goods.  The  jury  also  found,  that 
at  the  time  he  applied  for  the  meat,  and  promised  to  send  back  the 
money,  he  did  not  intend  to  return  the  money  ;  but  by  that  means  to 
obtain  the  meat,  and  cheat  the  prosecutor. 

The  learned  judge  respited  the  judgment,  making  an  order  that  the 
prisoner  might  be  delivered,  on  finding  bail,  to  appear  at  the  then  next 
Assizes. 

In  Michaelmas  term,  1821,  the  judges  met  and  considered  this  case. 
They  held  the  conviction  wrong  ;  being  of  opinion,  that  was  not  a  pre- 
tence witliin  the  meaning  of  the  statute.  It  was  merely  a  promise  for 
future  conduct,  and  common  prudence  and  caution  would  have  pre- 
vented any  injury  arising  from  the  breach  of  it.^ 


REX  V.   WAKELING. 
Crown  Case  Reserved.     1823. 

[Reported  Russell  4'  Ryan,  504.] 

The  prisoner  was  convicted  before  Mr.  Justice  Bayley,  at  the  gaol 
delivery  for  the  county  of  Essex,  in  January,  1823,  for  obtaining  a 
pair  of  shoes  from  Thomas  Poole,  the  overseer  of  the  poor  of  the 
parish  of  Great  Wheltham,  fi-om  which  parish  the  prisoner  received 
parochial  relief,  by  falsely  pretending  that  he  could  not  go  to  work 
because  he  had  no  shoes,  when  he  had  really  a  sufficient  pair  of  shoes. 

It  appeared  in  evidence  that  the  prisoner  and  his  family  received 
relief  from  the  parish  ;  that  Poole,  the  overseer,  bid  the  prisoner  go  to 
work  to  help  to  maintain  his  family ;  that  the  prisoner  said  he  could 
not  because  he  had  no  shoes;  that  Poole,  the  overseer,  thereupon 
supplied  him  with  a  pair  of  the  value  of  ten  shillings,  and  that  the 
prisoner  had,  in  fact,  at  the  time,  two  pair  of  new  shoes,  which  he  had 
previously  received  from  the  parish. 

The  learned  judge  doubted  whether  this  was  a  case  within  the 
statute,  and  thought  it  right  to  lay  it  before  the  judges  for  their  con- 
sideration. 

In  Hilary  term,  1823,  this  case  was  considerefd  by  the  judges,  who 
held  that  it  was  not  within  the  act,  and  that  the  conviction  was 
wrong ;  the  statement  made  by  the  prisoner  being  rather  a  false 
excuse  for  not  working  than  a  false  pretence  to  obtain  goods.* 

1  Ace.  Reg.  V.  Lee,  9  Cox  C.  C.  304;  State  v.  Colly,  39  La.  Ann.  841  ;  State  v. 
De  Lay,  93  Mo.  98.  See  Reg.  v.  .Jones,  6  Cox  C.  C.  467  ;  State  v.  Sarony,  95  Mo. 
349.  —  Ed. 

*  Ace.  Reg.  V.  Stone,  I  F.  &  F.  311.  —Ed. 


SECT.  IILJ  RLGINA    V.    MILLS. 


727 


REX   V.    HARXARD. 
Oxford  Assizes.     1837. 

[Reported  7  Carriw/ton  ,y  Puyw,  784.) 

False  pretences.  The  indk-ttncnt  cliar<j:tMl  that  the  prisoner  falPfly 
pretended  that  he  was  an  innler-<,^racUiate  of  tlie  University  of  (Jxford. 
and  a  conin)oner  of  Magdalen  College,  by  means  of  which  he  obtuined 
a  pair  of  boot-straps  from  John  Samuel  \'incent. 

It  appeared  that  Mr.  Vincent  was  a  boot-maker,  carrying  on  business 
in  High  Street,  Oxford  ;  and  that  the  prisoner  came  there,  wearing  a 
commoner's  cap  and  gown,  and  ordered  boots,  which  were  not  Biippned 
him,  and  straps,  which  were  sent  to  him.  He  stated  he  belonged  to 
Magdalen  College. 

It  was  proved  by  one  of  the  butlers  of  Magdalen  College  that  the 
prisoner  did  not  belong  to  that  college,  and  that  there  are  no  common- 
ers at  Magdalen  College. 

Holland,  B.  (in  summing  up).  If  nothing  had  passed  in  words,  I 
should  have  laid  down  that  the  fact  of  the  prisoner's  appearing  in  tlic 
cap  and  gown  would  have  been  pregnant  evidence  from  which  a  jury 
should  infer  that  he  pretended  he  was  a  member  of  the  university,  and 
if  so,  would  have  been  a  sufficient  false  pretence  to  satisfy  the  statute. 
It  clearly  is  so  by  analogy  to  the  cases  in  which  offering  in  payment 
the  notes  of  a  bank  which  has  failed,  knowing  them  to  be  so,  has  been 
held  to  be  a  false  pretence  without  any  words  being  used. 

Verdict^  Guilty.^ 


REGINA  V.  MILLS. 
Crown  Case  Reserved.     1857. 

[Reported  7  Cox  C.  C.  263.] 

At  the  General  Quarter  Sessions  of  the  Peace  holden  for  the  cotmty 
of  Cambridge,  on  the  9th  January,  18.37,  William  Mills  was  tri.-.i  and 
convicted  upon  the  following  indictment  for  obtaining  mom\v  uiuKr 
false  pretences. 

The  jurors  for  our  Lady  the  Queen  upon  their  oath  present,  that 
William  Mills,  on  the  14th  day  of  November,  IH.")*;,  did  falsely 
pretend  to   one  Samuel   Free    that  the  said  William  Mills  had  cut 

'  Ace.  Rex  V.  Douglass,  7  C.  &  P.  785  n. ;  Reg.  v.  Ilnnter.  10  Cox  C.  C.  642 ;  Rpjf. 
t).  Bull,  13  Cox  C.  C.  608;  Reg.  v.  Sampson,  52  L.  T.  772;  Reg.  v.  Itandell,  16  Cox 
C.  C.  335  .—  Ed. 


728  REGINA   V.    MILLS.  [CHAP.  XV. 

sixty-three  fans  of  chaff  for  him  the  said  Samuel  Free,  by  which  said 
false  pretence  the  said  William  Mills  then  unlawfully  did  obtain 
from  the  said  Samuel  Free  certain  money  of  him  the  said  Samuel 
Free,  with  intent  to  defraud.  Whereas,  in  truth  and  in  fact,  the 
said  William  Mills  had  not  cut  sixty-three  fans  of  chaff,  as  the 
said  William  Mills  did  then  so  falsely  pretend  to  the  said  Samuel 
Free,  but  a  much  smaller  quantity,  to  wit,  forty-five  fans  of  chaff. 
And  the  said  William  Mills,  at  the  time  he  so  falsely  pretended  as 
aforesaid,  well  knew  the  said  pretence  to  be  false,  against  the  form  of 
the  statute,  &c.  It  appeared  from  the  evidence  that  the  prisoner  was 
employed  to  cut  chaff  for  the  prosecutor,  and  was  to  be  paid  twopence 
per  fan  for  as  much  as  he  cut.  He  made  a  demand  for  10s.  6d.,  and 
stated  he  had  cut  sixty-three  fans,  but  the  prosecutor  and  another  wit- 
ness had  seen  the  prisoner  remove  eighteen  fans  of  cut  chaff  from  an 
adjoining  chaff-house,  and  add  them  to  the  heap  which  he  pretended 
he  had  cut,  thus  making  the  sixty-three  fans  for  which  he  charged. 
Upon  the  representation  that  he  had  cut  sixty-three  fans  of  chaff,  and 
notwithstanding  his  knowledge  of  the  prisoner  having  added  the  eigh- 
teen fans,  the  prosecutor  paid  him  the  lOs.  6d.,  being  3s.  more  than 
the  prisoner  was  entitled  to  for  the  work  actually  performed.  It  was 
objected  on  behalf  of  the  prisoner,  first,  that  this  was  simply  an  over- 
charge, as  in  the  case  of  R.  v.  Gates,  6  Cox  Crim.  Cas.  540  ;  and  sec- 
ondly, that  as  the  prosecutor  at  the  time  he  parted  with  his  money  knew 
the  facts,  the  prisoner  could  not  be  said  to  have  obtained  the  money 
by  the  false  pretence.  Judgment  was  postponed,  and  the  prisoner 
was  discharged  upon  recognizances  to  appear  at  the  next  Quarter 
Sessions.  The  opinion  of  the  Court  of  Criminal  Appeal  is  requested 
whether  the  prisoner  was  rightly  convicted  of  misdemeanor  under  the 
foregoing  indictment. 

No  counsel  was  instructed  for  the  prisoner. 

Orridge,  for  the  Crown.  Although  the  prosecutor  knew  that  the 
representation  was  false,  and  permitted  the  prisoner  to  complete  the 
offence  by  receiving  the  money,  that  does  not  render  tlie  offence  less 
in  him.  In  larceny  the  same  doctrine  is  established,  R.  v.  Eggington, 
2  B.  &  P.  508.  [CocKBURN,  C.  J.  There  the  prosecutor  remains 
passive.  Willes,  J.  Invito  domino  is  held  to  mean  without  leave.] 
In  R.  V.  Adey,  7  C.  &  P.  140,  it  was  said  to  be  no  answer  that  the 
prosecutor  had  laid  a  plan  to  entrap  the  prisoner  into  the  commission 
of  the  offence. 

CocKBURN,  C.  J.  The  question  in  these  cases  is,  whether  the  false 
representation  is  the  immediate  motive  operating  on  the  mind  of  the 
prosecutor,  and  inducing  him  to  part  with  his  money.  It  cannot  be 
said  that  that  was  the  case  here,  because  he  paid  the  money  although 
he  knew  the  representation  to  be  false.  Unless  the  money  be  obtained 
by  the  false  pretence,  it  is  an  attempt  only. 

Coleridge,  J.  In  R.  ik  Adey  the  prosecutor  did  part  with  his 
money  in  consequence  of  the  false  pretence. 


SECT.  III.]  REGINA   V.   BKYAN.                                                 729 

BiiAMWELL,  B.  I  do  uot  tbiuk  be  could  recover  back  the  money  iu 
a  civil  action. 

WiLLES,  J.     Because  it  was  paid  voluntarily  with  a  knowledge  of 

all  the  circumstances.  Cuncidiun  ijuashtd.^ 


REGINA  V.  BRYAN. 
Crown  Case  Reserved.     1857. 

[Reported  7  Cox  C.  C.  3)2.] 

The  following  case  was  reserved  by  the  Recorder  of  London  at  the 
Central  Criminal  Court:  — 

It  was  partly  argued  before  five  of  the  learned  judges  on  a  former 
day,  but  on  account  of  the  importance  of  the  question  raised  in  tiiis  as 
well  as  in  Reg.  v.  Sherwood,  7  Cox  C.  C.  270,  they  were  both  ordered 
to  be  reargued  before  all  the  judges. 

CASE. 

At  the  session  of  jail  delivery  holden  for  the  jurisdiction  of  the 
Central  Criminal  Court  on  the  second  day  of  February,  1857,  Joiin 
Bryan  was  tried  before  me  for  obtaining  money  by  false  pretences. 
There  were  several  false  pretences  charged  in  the  different  counts  of 
the  indictment,  to  which,  as  he  was  not  found  guilty  of  them  by  the 
jury,  it  is  not  necessary  to  refer.  But  the  following  pretences  were, 
among  others,  charged  :  — 

That  certain  spoons  produced  by  the  prisoner  were  of  the  best 
quality ;  that  they  were  equal  to  Elkington's  A  (meaning  spoons  and 
forks  made  by  Messrs.  Elkington,  and  stamped  by  them  with  the  let- 
ter A) ;  that  the  foundation  was  of  the  best  material ;  and  that  they 
had  as  much  silver  upon  them  as  Elkington's  A.  The  prosecutors 
were  pawnbrokers,  and  the  false  pretences  were  made  use  of  by  the 
prisoner  for  the  purpose  of  procuring  advances  of  money  on  the  spoons 
in  question,  offered  by  the  prisoner  by  way  of  pledge,  and  he  thereby 
obtained  the  moneys  mentioned  in  the  indictment  by  wa}'  of  such  ad- 
vances. The  goods  were  of  inferior  quality  to  that  represented  by  the 
prisoner,  and  the  prosecutors  said  that  had  tliey  known  the  real  quality 
they  would  not  have  advanced  money  upon  the  goods  at  any  i)rice. 
They  moreover  admitted  that  it  was  the  declaration  of  the  prisoner  as 
to  the  quality  of  the  goods,  and  nothing  else,  which  induced  them  to 
make  the  said  advances.  The  money  advanced  exceeded  the  value  of 
the  spoons.  The  jury  found  the  prisoner  guilty  of  fraudulently  repre- 
senting that  the  goods  had  as  much  silver  on  them  as  Elkington's  A, 
and  that  the  foundations  were  of  the  best  material,  knowing  that  to 

1  Ace.  Reg.  V.  Jones,  15  Cox  C.  C  475.   See  Reg.  v.  Ilensler,  1 1  Cox  C  C  570.  —  Ed. 


730  EEGINA   V.    BEYAN.  [CHAP.  XV. 

be  uutrue,  and  that  in  consequence  of  that  he  obtained  the  moneys 
mentioned  in  the  indictment.  The  prisoner's  counsel  claimed  to  have 
the  verdict  entered  as  a  verdict  of  "  not  guilty,"  which  was  resisted 
by  the  counsel  for  the  prosecution,  and  entertaining  doubts  upon  the 
question,  I  directed  a  verdict  of  guilty  to  be  entered,  in  order  that 
the  judgment  of  the  Court  of  Criminal  Appeal  might  be  taken  in  the 
matter,  and  the  foregoing  is  the  case  on  which  that  judgment  is 
requested.  Russell  Gurney. 

-S.  C.  Robinson^  for  the  prisoner,  submitted  that  these  were  not  false 
pretences  within  the  statute.  That  the  rule  to  be  deduced  from  all 
the  cases  was  this,  that  where  the  thing  obtained  was  in  specie  that 
which  it  was  represented  to  be,  the  statute  applied ;  but  where  the 
falsehood  was  merely  as  to  the  quality  of  the  thing,  where  it  became  a 
mere  question  of  better  or  worse,  such  pretence  was  not  indictable. 
Here  the  goods  were  in  specie  what  they  were  represented  to  be  ;  they 
were  plated  goods,  but  they  were  inferior  in  quality  to  the  representa- 
tion. If  it  were  otherwise,  and  that  the  puffing  or  vaunting  an  article 
that  was  offered  for  sale  was  a  criminal  offence,  every  trader  in  the 
commercial  world  would  be  committing  a  crime  twenty  times  in  the 
course  of  each  day.  In  R.  v.  Roebuck,  7  Cox  Crim.  Cas.  126, "most 
of  the  learned  judges  in  delivering  their  judgment  stated  that  but  for 
the  case  of  R.  v.  Abbott,  1  Den.  C.  C.  173,  they  should  have  hesitated 
in  holding  the  conviction  to  be  proper,  but  that  they  felt  bound  by 
that  authority.  If  then  it  could  be  shown  that  the  present  case,  if 
the  conviction  were  to  be  sustained,  would  go  further  than  those  above 
mentioned,  the  court  would  not  confirm  it.  Every  decision  might  be 
reconciled  with  the  principle  contended  for.  In  R.  v.  Roebuck,  the 
chain  pawned  for  silver  was  not  silver  at  all.  So  with  regard  to  the 
thimble  in  R.  v.  Ball,  C.  &  M.  249.  In  R.  v.  Dundas,  6  Cox  Crim.  Cas. 
380,  the  article  sold  was  stated  to  be  Everett's  blacking  ;  it  was  bought 
on  the  faith  of  its  being  so,  and  it  turned  out  to  be  a  spurious  com- 
pound. There  it  was  not  a  mere  representation  of  quality,  but  of  a 
specific  thing  known  as  Everett's  blacking. 

Lord  Campbell.  Was  not  R.  v.  Abbott  decided  on  a  pretence  with 
regard  to  the  quality  of  a  cheese  ? 

Robinson.  No.  If  the  representation  alleged  in  the  indictment 
had  been  that  the  cheese  was  of  the  same  quality  as  the  taster,  that 
would  have  rendered  the  case  analogous  to  this.  But  it  was  not  so. 
The  representation  there  was  that  the  taster  formed  part  and  parcel 
of  the  cheese  to  be  sold,  and  it  was  in  truth  of  a  totally  different  char- 
acter, inserted  into  the  bulk  for  the  purposes  of  fraud.  Tliat  was 
a  statement  of  a  specific  fact  quite  independent  of  the  quality. 
The  cheese  might  have  been  of  even  better  quality  than  the  taster, 
and  yet  the  falsehood  of  the  pretence  would  equally  exist.  If  the 
misrepresentation  here  had  been  that  the  spoons  were  of  Elking- 
ton's  manufacture,  and  had  formed  part  of  Elkington's  stock,  then 


SECT.  III.]  REGINA    V.    BRYAN. 


731 


the  case  would  be  identical  with  R.  r.  Abbott ;  btit  there  is  a  wide 
distinction  betwoeu  tlie  stuton.cnts  that  they  arc,  Klkingtuu's  and  that 
they  are  as  good  as  Klkington's. 

Colki;iik;i:,  ,I.  Jf  the  sc-llcr  is  to  be  indictable  for  overpraising  ),;« 
goods,  then  the  buyer  would  be  indictal)le  also  for  unfaiily  dciM-rciat- 
ing  them,  and  tlius  obtaining  tiicni  i^-low  their  value. 

Loud  Campi-.icm,.  'J'hat  would  certainly  sccni  to  be  ho.  Kvtn  the 
act  of  depreciating  would  be  indictable,  because  it  would  \>c  an  attempt 
to  obtain  them  by  a  false  pretence  as  to  their  quality. 

lioUnson.  In  the  administration  of  the  criminal  law,  it  is  of  the 
highest  importance  to  deUne  as  accurately  as  may  be  what  crime  is, 
and  not  to  leave  too  much  to  the  interpretation  of  juries.  Otlierwise, 
in  such  a  case  as  this,  every  man  who  was  dissatisfied  with  a  bargain 
he  had  made  would  have  it  in  his  power  to  indict  a  tradi'sman  who 
sold  him  goods,  on  the  plea  that  every  representation  made  in  the 
course  of  the  bargain  was  not  true  to  the  letter.  A  cutler  who  war- 
ranted a  knife  to  be  as  good  as  Rodger's,  a  tailor  who  stated  a  co:it 
to  be  of  the  best  Saxony  wool,  a  brewer  who  represented  his  beer  to 
be  treble  X,  would  be  constantly  amenable  to  the  criminal  law,  and  a 
jury  would  have  to  decide  upon  their  fate.  A  line  must  be  drawn 
somewhere,  and  to  hold  that  a  pretence  to  be  within  the  statute  must 
be  with  reference  to  some  clear  specific  fact,  the  truth  or  falseliood  of 
which  may  be  demonstrably  shown,  the  assertion  and  the  fact  being 
each  the  contradictory  of  the  other,  is  consistent  both  with  conveni- 
ence and  autliority,  whilst  it  would  be  highly  dangerous  to  hold  tliat 
statements  wliich  might  be  mere  matters  of  opinion  or  speculation 
were  the  subject-matters  of  a  criminal  cliar^-e. 

Lord  Campbell.     You  say  it  is  lawful  to  lie  in  respect  of  (piality. 

Robinson.  However  immoral,  that  it  is  not  a  crime.  At  the  outset 
it  must  be  admitted  tluvt  this  was  a  wilful  lie.  The  case  states  it,  and 
the  jury  have  so  found  it.  It  must  also  be  admitted  that  in  conse- 
quence of  tlie  lie  the  money  was  obtained.  It  is  only  on  such  admis- 
sions that  the  point  can  ever  arise.  The  question  is,  is  such  a  lie  as 
this  a  false  pretence  within  the  statute  ? 

Lord  Campbell.  But  it  is  part  of  the  allegation  that  there  is  as 
much  silver  in  the  spoons  as  in  Elkington's  A.  Is  not  that  the  asser- 
tion of  a  fact  ? 

Robinson.  It  is  no  more  in  reality  than  a  representation  of  the 
quality.  It  is  the  amount  of  silver  in  these  goods  that  gives  tliem 
their  value,  and  saying  of  them  that  they  have  more  or  less  silver  is 
equivalent  to  saying  that  they  arc  of  better  or  worse  quality. 

Pollock,  C.  B.  Suppose  a  seller  of  cheese  to  state  that  it  came 
from  a  particular  dairy  in  Cheshire,  when  in  fact  it  came  from 
America. 

Robinson.  That  might  probably  be  a  false  pretence,  because  the 
buyer  would  not  get  the  precise  thing  he  bargained  for.     He  might 


732  KEGINA  V.   BRYAN.  [CHAP.  XV. 

want  a  Cheshire  cheese  and  not  an  American  one,  quite  irrespective  of 
the  quality. 

Bkamwell,  B.  I  see  nothing  in  the  statute  that  recognizes  a  dis- 
tinction between  species  and  quality. 

Robinson.  The  statute  must  be  taken  in  connection  with  the  many 
cases  that  have  been  decided  upon  it,  and  which  have  given  it  a  par- 
ticular interpretation. 

Bramwell,  B.  If  I  buy  a  spurious  autograph  of  the  Duke  of  Wel- 
lington, or  a  spm-ious  picture  attributed  to  Raphael,  I  get  a  thing  of 
the  same  species  as  that  bargained  for. 

RoUnson.  If  the  autograph  or  the  picture  was  represented  to  be 
genuine  when  it  was  known  to  be  spurious,  that  would  probably  be  a 
false  pretence  ;  but  if  it  was  said  that  the  writing  or  the  painting  was 
in  the  duke's  or  the  painter's  best  style,  and  it  was  known  to  be  other- 
wise, it  would  not  be  so.  There  are  cases  which  tend  to  show  that 
the  doctrine  of  caveat  emptor  might  be  applicable  here,  or  that  false 
representations  as  to  specific  facts  in  the  course  of  a  bargain  and  sale 
are  not  within  the  statute,  but  still  much  doubt  has  of  late  been  thrown 
upon  them,  and  it  is  not  thought  necessary  to  rely  upon  them  here. 

Francis  (with  him  Metcalfe),  for  the  prosecution.  The  false  pre- 
tences relied  upon  are  as  to  the  quantity  of  silver  in  the  spoons  being 
equal  to  Elkingtou's  A,  and  the  foundations  being  of  the  best  material. 
These  are  facts  easily  ascertainable,  and  which,  in  truth,  the  jury 
have  expressed  their  judgment  upon.  They  are  not  mere  statements 
that  the  spoons  are  as  good  or  as  valuable  as  Elkington's.  It  is  some- 
thing more  than  a  mere  representation  with  regard  to  quality ;  for  it 
must  be  taken,  after  the  finding  of  the  jury,  that  the  amount  of  silver 
on  Elkington's  A  spoons  was  a  well  known  fixed  quantity.  In  the 
case  of  R.  v.  Sherwood,  just  decided,  it  was  held  that  a  misrepre- 
sentation with  regard  to  quantity  was  a  good  false  pretence  within  the 
statute,  and  there  is  here  just  as  strong  a  representation  as  to  quantity 
as  there  was  there.  The  spoons,  no  doubt,  had  a  small  quantity  of 
silver  upon  them,  but  it  was  so  trifling  that  the  money  advanced  ex- 
ceeded their  full  value,  and  it  is  found  that  had  the  prosecutors  known 
the  real  value  they  would  not  have  advanced  any  money  upon  them 
whatever.  But  there  is  no  case  laying  down  the  principle  contended 
for  on  the  other  side,  that  a  misrepresentation  with  regard  to  quality 
is  not  within  the  statute ;  on  the  contrary,  in  R.  v.  Kenrick,  5  Q.  B. 
49,  one  of  the  pretences  was,  that  a  horse  was  quiet  to  ride  and  drive, 
which  was  false  within  the  seller's  knowledge,  and  the  court  sustained 
the  conviction.  The  words  of  the  statute  are  clear  and  precise,  that 
goods  obtained  by  any  false  pretence  constitutes  the  crime  ;  and  the 
jury  have  here  found  everything  that  the  act  renders  material.  It  was 
probably  intended  to  prevent  precisely  such  frauds  as  these  ;  and  the 
argument  that  this  is  a  mere  vaunting  or  puffing  off  of  goods  that  a 
tradesman  is  anxious  to  sell  is  answered  by  this,  that  the  jury  have 


SECT.  Ill  ]  RKGINA   V.    BKYAN.  733 

found  that  the  representations  were  made  fraudulently  an<l  with  hiU-ni 
to  cheat  the  prosecutor.  Where  there  is  8uch  an  intent,  ami  it  is  acted 
upon  successfully,  there  can  Ite  no  incouvenieucc  in  holding  it  to  Lm; 
punishable  as  a  crime  ;  and  a  jury  of  tradesmen  would  not  be  likely  to 
convict  a  man  who  had  merely  exaggerated  the  value  of  liis  proi^erty 
for  the  purpose  of  getting  a  better  [jriee  for  it.  Tliat  is  often  done 
innocently,  or  at  least  without  any  fraudulent  intent;  but  here  such 
limits  are  far  overstepped.  It.  v.  Roebuck  virtually  decides  thiH  ca»€, 
for  the  pretences  are  substantially  the  same.  It  is  true  that  there  the 
chain  which  was  represented  to  be  silver  was  not  silver  at  all ;  but 
here  the  representation  is  equally  false,  for  altliough  the  sjx^ons  were 
coated  with  silver,  it  was  in  so  small  a  (juantity  as  to  render  them  almoht 
valueless.  80  iu  R.  r.  Abbott,  whatever  might  be  the  pretence  alleged 
in  the  indictment,  in  substance  the  fraud  consisted  in  selling  a  very 
inferior  article  for  one  of  superior  quality. 

Mobinsoit,  iu  reply.  Whatever  the  representations  may  Ije,  they 
have  reference  to  quality,  and  not  to  species  ;  and  this,  at  all  events, 
distinguishes  the  case  from  R.  v.  Roebuck,  and  all  the  other  cases  that 
have  been  decided  upon  this  point.  As  to  R.  r.  Kenrick  the  decision 
did  not  turn  upon  the  pretence  mentioned,  namely,  that  the  horses 
•were  quiet  to  ride  and  drive.  There  were  otiier  pretences  in  tiiat  case 
that  would  be  clearly  within  the  rule  that  tlie  pretences  had  been  made 
with  respect  to  specific  facts,  and  it  was  upon  these  that  the  court 
acted.  In  R.  v.  Sherwood  there  was  a  pretence  that  there  were  eigii- 
teen  tons  of  coal  to  be  delivered,  when  in  truth  there  were  only  four- 
teen. There  was  therefore  an  assertion  that  there  were  four  tons  of 
coal  in  the  wagon  which  did  not  exist  at  all.  Here  the  number  of 
spoons  delivered  was  correctly  represented,  but  each  individual  8ixK>n 
was  of  an  inferior  description.  In  fact,  the  case  states  that  it  was  the 
declaration  of  the  prisoner  with  regard  to  the  quality  of  tlie  gomls, 
and  nothing  else,  which  induced  the  prosecutors  to  part  with  their 
money. 

On  the  conclusion  of  the  argument,  the  learned  judges  retired  to 
consider  the  case,  and  on  their  return  they  delivered  the  following 
judgments  seriatim:  — 

Lord  Campbell,  C.J.  I  am  of  opinion  that  this  conviction  cannot 
be  supported,  as  it  seems  to  me  to  proceed  upon  a  mere  representation, 
during  the  bargaining  for  the  purchase  of  a  commodity,  of  the  quality 
of  that  commodity.  In  the  last  case  which  we  disposed  of  (R.  »•.  Sher- 
wood), after  the  purchase  had  been  completed  there  was  a  distinct 
averment  which  was  known  to  be  false,  respecting  the  quantity  of  the 
goods  delivered,  and  in  respect  of  that  misrepresentation  a  larger  sum 
of  money  was  received  than  ought  to  have  been  received,  the  amount 
of  which  could  be  easily  calculated  ;  and  therefore  I  thought,  and  I  think 
now,  that  that  was  clearly  a  case  within  the  Act  of  rarliament.  Hut 
here,  if  you  look  at  what  is  stated  upon  the  face  of  the  case,  it  resolves 


734  KEGINA   V.    BRYAN.  [cilAP.  XV. 

itself  into  a  mere  misrepresentation  of  the  quality  of  the  article  that  was 
sold,  bearing  in  mind  that  the  article  was  of  the  species  that  it  was  rep- 
resented to  be  to  the  purchaser,  namely,  plated  spoons,  and  that  the 
purchaser  received  them.  Now,  it  seems  to  me,  it  never  could  have 
been  the  intention  of  the  legislature  to  make  it  an  indictable  offence 
for  the  seller  to  exaggerate  the  quality  of  that  which  he  was  selling, 
any  more  than  it  would  be  an  indictable  offence  for  the  purchaser,  dur- 
ing the  bargain,  to  depreciate  the  quality  of  the  goods,  and  to  say  that 
they  were  not  equal  to  that  which  they  really  were.  It  seems  to  me 
that  this  is  an  extension  of  the  criminal  law  which  is  most  alarming, 
for  not  only  would  sellers  be  liable  to  be  indicted  for  an  extravagant 
representation  of  the  value  of  goods,  but  purchasers  would  be  liable 
to  be  indicted  if  they  improperly  depreciated  the  quality  of  the  goods, 
and  induced  the  sellers  by  that  depreciation  to  sell  the  goods  at 
an  under  price,  and  below  the  real  value  of  the  goods,  which  would 
have  been  paid  for  them  had  it  not  been  for  that  representation.  Now, 
as  3^et,  I  find  no  case  in  which  it  has  been  held  that  this  misrepre- 
sentation, at  the  time  of  sale,  of  the  quality  of  the  goods,  has  been 
held  to  be  an  indictable  offence.  In  Reg.  v.  Roebuck  the  article  de- 
livered was  not  of  the  species  bargained  for,  for  there  it  was  for  a 
silver  chain,  and  the  chain  that  was  sold  was  not  of  silver,  but  was  of 
some  base  metal,  and  was  of  no  value.  But  here  the  spoons  were 
spoons  of  the  species  that  was  bargained  for,  although  the  quality  was 
inferior.  It  seems  to  me,  therefore,  that  this  is  not  a  case  within  the 
Act  of  Parliament,  and  that  the  conviction  cannot  be  supported.^ 

Pollock,  C.  B.  There  may  be  considerable  difficulty  in  laying  down 
any  general  rule  which  shall  be  applicable  to  each  particular  case,  and 
although  I  think  that  the  statute  was  not  meant  to  apply  to  the  ordi- 
nary commercial  dealings  between  buyer  and  seller,  yet  I  am  not  pre- 
pared to  lay  down  this  doctrine  in  an  abstract  form,  because  I  am 
clearly  of  opinion  that  there  might  be  many  cases  of  buying  and  sell- 
ing to  which  the  statute  would  apply.  I  think  if  a  tradesinan  or  a 
merchant  were  to  concoct  an  article  of  merchandize  expressly  for  the 
purpose  of  deceit,  and  were  to  sell  it  as  and  for  something  very  differ- 
ent even  in  quality  from  what  it  was,  there  I  think  the  statute  would 
apply.  So  if  a  mart  were  opened,  or  a  shop  in  a  public  street,  with  a 
view  of  defrauding  the  public,  and  puffing  off  articles  calculated  to 
catch  the  eye  which  really  possessed  no  value,  there  I  think  the  statute 
would  apply ;  but  I  think  it  does  not  apply  to  the  ordinary  commercial 
dealings  between  man  and  man,  and  certainly,  as  has  been  observed 
by  the  Lord  Chief  Justice,  if  it  applies  to  the  seller,  it  equally  applies 
to  the  purchaser.  It  is  not  very  likely  that  many  cases  of  that  sort 
would  arise.  It  would  be  very  inconvenient  to  lay  down  a  principle 
that  would  prevent  a  man  from  endeavoring  to  get  the  article  cheap 

^  Concurring  opinions  of  Cockburn,  C.  J.,  Coleridge,  Cresswell,  £rle,  Cromp- 
TON,  and  Crowder,  JJ.,  Watson  and  Channell,  B.B.,  are  omitted. 


SECT.  lll.J  lU-.GlNA    V.    BKYAN.  735 

which  he  was  barguiuiuj^  for,  and  that  if  ho  waa  endeavorint^  to  get  it 
undur  the  value  lie  might  be  iiuiicted  for  so  iloiiig.  Ami  there  is  this  to 
be  observed,  that  if  the  suceessfully  obtaining  your  object,  either  in  get- 
ting goods  or  money,  is  an  indictable  olTeuce,  any  attempt  or  step  towurtis 
it  is  an  indictable  offence  as  a  misdemeanor,  because  any  attempt  or 
any  progress  made  towards  the  comijletion  of  the  olTeiu-e  would  be  the 
subject  of  an  indictment,  anil  then  it  would  follow  from  that,  that  u 
man  could  not  go  into  a  broker's  shop  and  cheapen  an  article  but  he 
would  subject  himself  to  an  indictment  for  misdemeanor  in  endeavor- 
ing to  get  the  article  under  false  pretences.  For  these  reasotis  I  think 
it  may  be  fairly  laid  down,  that  any  exaggeration  or  depreciati(jn  in 
the  ordinary  course  of  dealings  between  ijuyer  and  seller  during  the 
progress  of  a  bargain  is  not  the  subject  of  a  criminal  prosecution.  I 
think  this  case  falls  within  that  proposition,  and  therefore  this  con- 
viction cannot  be  supported. 

"NViLLKS,  J.'  I  am  of  oi)inion  at  variance  with  those  which  have 
been  generally  expressed,  but  such  as  my  opinion  is  1  am  bound  to 
pronounce  it,  and  I  do  so  with  the  greater  confidence,  because  it  was 
the  settled  opinion  of  the  late  Chief  Justice  Jervis,  than  whom  no  man 
who  ever  lived  was  more  competent  to  form  a  correct  opinion  upon 
the  subject.  I  think  that  the  conviction  was  right  and  that  it  ought 
to  be  affirmed.  It  appears  to  me,  in  looking  through  the  cases,  that  a 
great  number  of  the  observations  that  have  been  thrown  out  with  regard 
to  the  construction  of  the  statute  would  not  have  been  made  if  the  words 
of  the  statute  had  been  more  strictly  looked  at ;  and  that  even  some  of 
the  judgments  would  not  have  been  pronounced  if  those  who  pronounct.'d 
them  had  not  permitted  themselves  to  consider  whether  it  would  or 
would  not  be  convenient  to  trade  to  adopt  one  interpretation  or  an- 
other. I  think  the  words  of  the  act  should  be  implicitly  followed,  and 
the  legislature  should  be  obeyed  according  to  the  terms  in  which  it  has 
expressed  its  will  in  the  53d  section  of  the  7  &  8  (i.  IV.  c.  29.  I  am 
looking  to  the  words  of  that  section,  and  I  am  una])le  to  bring  myself 
to  think  that  its  framers  were  dealing  with  anything  in  the  nature  of 
a  distinction  between  the  case  of  goods  fraudulently  obtained  by  con- 
tract and  goods  so  obtained  without  any  contract.  The  section  com- 
mences with  the  recital,  "That  whereas  a  failure  of  justice  fro<iuently 
arises  from  the  subtle  distinction  between  larceny  and  fraud  ;  "  now 
this  recital  ought  not  on  a  proper  construction,  and  according  to  those 
authorities  by  which  we  are  bound,  to  have  the  effect  of  restraining 
the  operation  of  the  enacting  clause.  The  enacting  jiart  of  the  sec- 
tion is,  "  if  any  person  shall  by  any  false  pretence  obtain  from  any 
other  person  any  chattel,  money,  or  valuable  security,  with  intent  to 
cheat  or  defraud  any  person  of  the  same,  every  such  offender  shall  l)e 
guilty  of  a  misdemeanor."     And  it  appears  to  me  that  the  only  proi)er 

1  Bramwell,  B.,  also  Jelivered  an  opinion  supporting  the  conviction. 


736  KEGINA   V.    BRYAN.  [CHAP.  XV. 

test  to  apply  to  any  case  is  this,  whether  it  was  a  false  pretence  by 
which  the  property  was  obtained,  and  whether  it  was  obtained  with 
the  intention  to  cheat  and  defraud  the  person  from  whom  it  was  ob- 
tained. Now  in  this  case  it  appears  that  there  was  a  false  pretence  ; 
there  was  a  pretence  that  the  goods  had  as  much  silver  upon  them  as 
Elkington's  A ;  there  was  also  the  pretence  that  the  foundations  were 
of  the  best  material.  If  I  could  bring  myself  to  take  the  view  which 
my  brother  Erie  has  taken  of  the  statement  of  the  case,  that  these 
were  matters  of  opinion,  and  not  matters  of  fact,  which  could  be 
ascertained  by  inspection  or  calculation,  possibly  I  might  arrive  at 
the  same  conclusion  as  he  has  done ;  but  it  appears  to  me  on  the 
face  of  the  case  that  Elkington's  A  must  have  been  a  fixed  quan- 
tity, and  that  the  proper  material,  the  best  material  for  the  foun- 
dation of  such  plated  articles,  must  have  been  a  well  known  quality 
in  the  trade,  because  it  appears  that  the  prisoner  made  a  statement 
with  respect  to  the  quantity  of  silver  and  the  quality  of  the  founda- 
tion with  the  intent  to  defraud.  It  appears  that  the  person  who 
made  the  advance  was  thereby  defrauded,  — thereby  induced  to  make 
the  advance  ;  the  jury  have  found  that  the  statements  were  known  by 
the  prisoner  to  be  untrue,  and  that  in  consequence  of  these  statements 
he  obtained  the  money  mentioned  in  the  indictment.  It  appears  to  me 
that,  for  all  practical  purposes,  that  ought  to  be  taken  to  be  a  suflicient 
fact  coming  within  the  region  of  assertion  and  calculation,  and  not  a 
mere  speculative  opinion,  and  that  it  should  be  considered  a  false  pre- 
tence. If  the  misrepresentation  was  a  simple  commendation  of  the 
goods ;  if  it  was  a  mere  puffing  of  the  articles  which  were  offered  in 
pledge  ;  if  it  was  entirely  a  case  of  one  person  dealing  with  another  in 
the  way  of  business,  who  might  expect  to  pay  the  price  of  the  articles 
which  were  offered  for  the  purpose  of  pledge  or  sale,  —  I  apprehend  it 
would  have  been  easily  disposed  of  by  the  jury  who  had  to  pass  an 
opinion  upon  the  question,  acting  as  persons  of  common  sense  and 
knowledge  of  the  world.  It  would  be  a  question  for  them  in  such  case 
whether  the  matter  was  such  ordinary  puffing  that  a  person  ought  not 
to  be  taken  in  by  it,  or  whether  it  was  a  misrepresentation  of  a  specific 
fact  material  to  the  contract,  intended  to  defraud,  and  by  which  the 
money  in  question  was  obtained.  Well,  then,  there  is  the  latter  part 
of  the  section,  "  with  intent  to  cheat  and  defraud  any  person  of  the 
same."  It  must  be  with  the  intention  to  cheat  or  defraud  the  person 
of  the  same,  and  that  intention  here  is  found  to  have  existed ;  there- 
fore I  am  unable  to  bring  my  mind  to  feel  any  anxiety  to  protect 
persons  who  make  false  pretences  with  intent  to  cheat  and  de- 
fraud. The  effect  of  establishing  such  a  rule  as  is  contended  for 
would,  in  my  opinion,  be  rather  to  interfere  with  trade  and  to  px'e- 
vent  its  being  carried  on  in  the  way  in  which  it  ought  to  be  carried 
on.  I  am  far  from  seeking  to  interfere  with  the  rule  as  to  simple 
commendation  or  praise  of  the  articles  which  are  sold,  on  the  one 


SECT.  III.]  REGINA   V.   GOSS.  737 

hand,  or  to  that  which  is  called  chaffering  on  the  other ;  those  are 
things  persons  may  expect  to  meet  witli  in  tlie  ordinary  and  iiKnfil 
course  of  trade.  But  as  to  tlie  fear  of  multiplying  prosecutions,  I  am 
afraid  that  we  live  in  an  age  in  which  fraud  is  multiplied  to  a  great 
extent,  and  in  the  particular  form  which  this  case  assumes.  I  agree 
in  what  the  late  Chief  Justice  Jervis  stated  as  most  peculiarly  ajjplica- 
ble,  namely,  that  as  to  such  a  commerce  as  recpiires  to  l)e  protijcted  hy 
this  statute  being  limited  in  the  mode  suggeste<l,  trade  ought  to  he 
made  honest  and  conform  to  the  law,  and  not  the  law  hend  for  tlie  pur- 
pose of  allowing  fraudulent  commerce  to  go  on.  I  cannot  help  tliink- 
ing  therefore,  upon  the  fair  construction  of  the  53d  section  of  the  7 
«&  8  G.  IV.  c.  29,  the  prisoner  in  this  case  having  fraudulently  repre- 
sented that  there  was  a  greater  amount  of  silver  in  the  articles 
pledged  than  there  really  was,  and  that  there  was  a  superior  founda- 
tion of  metal  (that  being  untrue  to  his  knowledge),  for  the  purpose 
of  defrauding  the  prosecutors  of  their  money,  which  he  accordingly 
obtained,  he  was  indictable,  and  that  the  conviction  should  be 
aflSrmed.^ 


REGIXA  V.   GOSS;    REGINA  v.  RAGG. 

Crown  Cases  Reserved.     1860. 

[Reported  8  Cox  C.  C.  262.] 

Regina  V.  Goss. 

Case  reserved  for  the  opinion  of  this  court  by  the  Recorder  of 
Northampton. 

The  prisoner,  Thomas  Goss,  was  tried  before  me  at  the  last  Michael- 
mas Sessions  for  the  borough  of  Northampton,  for  obtaining  money  by 
false  pretences.^ 

It  was  proved  at  the  trial  that  the  prosecutor,  Thomas  Roddis.  on 
the  19th  September  last,  was  attending  the  cheese  fair  held  within 
the  borough  of  Northampton,  and  that  the  prisoner  was  in  the  fair, 
and  sold  to  the  prosecutor  eight  cheeses,  weighing  1  cwt.  3  qrs.  1  lb. 
for  which  the  prosecutor  paid  the  prisoner  the  sum  of  £3  lO.s".  6*/., 
being  at  the  rate  of  A\d.  per  pound.  On  the  prosecutor  going  into 
the  fair,  the  prisoner  offered  to  sell  him  the  eight  cheeses,  and  bored 
six  of  them  with  a  cheese-scoop,  and  then  produced  and  offered  to 
the  prosecutor  several  pieces  of  cheese,  which  are  called  "tasters." 
successively  at  the  end  of  the  scoop  for  the  prosecutor  to  taste,  and 
in  order  that  he  might  taste  them  as  being  respectively  samples  and 

1  Ace.  Reg.  V.  Levine,  10  Cox  C.  C.  374.     Contra,  Reg.  v.  Ardley.  12  Cox  C  C.  2i 
See  Reg.  v.  Evans,  9  Cox  C.  C.  238 ;  Reg.  r.  Lawrence,  36  L.  T.  Rep.  404.  —  Et>. 
'  The  indictment  is  omitted. 

47 


738  REGINA   V.   GOSS.  [CHAP.  XV. 

portions  of  the  six  cheeses  which  the  prisoner  had  bored ;  and  accord- 
ingly the  prosecutor  did  taste  them,  and  then  offered  the  prisoner  4^d. 
per  pound  for  the  eight  cheeses,  which  the  prisoner  accepted. 

The  tasters,  however,  had  not  in  fact  been  extracted  from  the 
cheeses  offered  for  sale,  for  after  the  prisoner  had  bored  the  cheeses, 
and  before  he  handed  the  tasters  to  the  prosecutor,  he  took  from  his 
coat  pocket  pieces  of  cheese  of  better  qualit}-  and  description  than 
those  taken  from  the  cheeses  which  he  had  bored,  and  privily  and 
fraudulently  put  these  pieces  of  cheese  at  and  into  the  top  of  the 
scoop  for  the  prosecutor  to  taste,  and  the  cheese  which  the  prosecutor 
did  taste,  was  not  any  portion  of  the  six  cheeses  which  the  prisoner 
bored. 

The  prosecutor,  at  the  time  he  bought  the  eight  cheeses,  believed 
that  he  had  been  tasting  a  portion  of  those  cheeses,  and  in  that  belief 
bought  them,  and  paid  the  prisoner  the  £3  19s.  6d.  for  them,  which  he 
would  not  have  done  unless  he  had  believed  that  the  tasters  had  been 
extracted  from  the  cheeses  which  he  so  bought.  The  cheeses  were 
delivered  to  the  prosecutor,  and  he  retained  possession  of  them  up  to 
the  trial. 

The  value  of  the  eight  cheeses  would  be  about  Sd.  per  lb. 

The  prisoner's  counsel  at  the  trial  objected  that  there  was  no  evi- 
dence to  support  the  indictment,  or  of  an}'  facts  which  would  consti- 
tute a  false  pretence  within  the  statute. 

I  left  the  case  to  the  jury,  and  the  prisoner  was  convicted ;  but 
having  some  doubt  as  to  whether  the  case  of  Reg.  v.  Abbott  2  Cox 
Crim.  Cas.  430,  had  not  been  shaken  by  subsequent  decisions  (see 
Reg.  y.  Bryan,  7  Cox  Crim.  Cas.  312),  I  reserved  the  case  for  the 
opinion  of  the  Court  of  Appeal.  John  H.  Brewer. 

No  counsel  was  instructed  to  argue  in  behalf  of  the  prosecution. 

Merewether  (for  the  prisoner).  This  case  was  reserved  in  conse- 
quence of  the  remarks  of  some  of  the  judges  upon  the  case  of  Reg. 
V.  Abbott,  2  Cox  Crim.  Cas.  430,  which  was  decided  upon  the  author- 
ity of  Reg.  V.  Kenrick,  5  Q.  B.  49.  The  facts  in  the  present  case 
are  precisely'  the  same  as  in  Reg.  v.  Abbott ;  and  unless  that  case  can 
be  impeached,  this  conviction  must,  no  doubt,  be  upheld.  In  Reg.  v. 
Roebuck,  7  Cox  Crim.  Cas.  126,  Lord  Campbell,  C.  J.,  said;  "If 
this  were  res  Integra,  I  should  not  agree  with  Reg.  v.  Abbott,  because 
I  think  tiiat  there  the  intention  of  the  prisoner  was  to  obtain  a  better 
bargain,  and  not  animo  fur  audi ;  but  that  having  been  decided  by 
ten  judges,  I  do  not  wish  on  the  present  appeal  to  disturb  it."  So  in 
Reg.  u.  Eagleton,  6  Cox  Crim.  Cas.  559,  the  authority  of  Reg.  v. 
Abbott  and  Reg.  v.  Kenrick  was  much  disputed  in  the  course  of  the 
argument ;  but  the  court  said  that  it  did  not  then  become  necessary 
to  consider  those  cases.  In  Reg.  v.  Bryan,  7  Cox  Crim.  Cas.  312, 
the  defendant,  in  order  to  obtain  a  loan  on  a  quantity  of  plated  spoons, 
represented  to  a  pawnbroker  that  they  were  of  the  best  quality,  and 


SECT.  111.]  liEGINA   V.   RAGG.  739 

were  equal  to  Elkingtoii's  A  (meaning  .spoons  and  forks  made  by 
Elkington,  and  stamped  with  the  letter  A;  ;  that  the  foundation  was 
of  the  best  material,  and  that  they  had  as  much  silver  upon  them  as 
p:ikington's  A.  The  jury  found  that  these  representations  were  wil- 
fully false,  and  that  by  means  of  them  the  loan  was  obtain«'d.  Ikld 
(Willes,  J.,  and  ]iramwell,  B.,  disseiiticntihns),  that  the  conviction 
was  wrong,  and  tiiat  the  representation  being  a  mere  exaggeration  or 
puffing  of  the  quality  of  the  goods  in  the  course  of  a  bargain,  it  was 
not  a  false  pretence  within  the  statute.  In  Reg.  r.  Sherwood,  7  Cox 
Crira.  Cas.  270,  the  prisoner,  after  he  had  agreed  with  the  prosecutor 
to  sell  and  deliver  a  load  of  coals  at  u  certain  price  per  cwt.,  faLselv 
and  fraudulently  pretended  that  the  quantity  which  he  had  delivered 
was  18  cwt,  and  that  it  had  been  weighed  at  the  collier}*,  and  the  weight 
put  down  by  himself  on  a  ticket  which  he  produced,  he  knowing  it  to 
be  14  cwt.  onl}',  and  thereby  ol)taiiied  an  additional  sum  of  money  ; 
and  this  was  held  to  amount  to  a  false  pretence  within  the  statute. 
In  that  case  a  difficulty  was  felt  by  the  court  in  drawing  the  line 
between  indictable  and  non-indictable  false  representations. 

The  Court  said  that  they  had  no  doubt  about  Reg.  v.  Abbott  being 
a  decision  that  they  would  act  upon,  and  sound  in  principle,  but  they 
desired  the  case  of  Reg.  v.  Joseph  Ragg  (being  on  the  same  subject) , 
to  be  called  on  before  giving  judgment. 

Regina  y.  Ragg. 

Case  reserved  for  the  opinion  of  this  court  b}'  the  Chairman  of  th« 
Leicestershire  Quarter  Sessions. 

Joseph  Ragg  was  tried  before  me  at  the  General  Quarter  Sessions 
of  the  peace  for  the  county  of  Leicester,  held  on  the  3d  January,  18G0, 
for  obtaining  mone}'  under  false  pretences  from  Henry  Harris. 

The  indictment  stated  the  pretence  to  be,  a  false  pretence  as  to  the 
character  and  weight  of  a  quantity  of  coals,  sold  and  delivered  by  the 
prisoner  to  the  prosecutor. 

It  appeared  in  evidence  as  follows :  The  prisoner  was  a  coal 
dealer.  On  the  28th  November  he  called  at  the  house  of  the  prose- 
cutor in  Loughborough,  with  a  load  of  coals  in  a  cart,  and  inquired 
if  he  (the  prosecutor)  wanted  to  buy  a  load  of  "  Forest "  coal.  The 
prosecutor  replied  that  the  coals  did  not  look  like  Forest  coal,  be- 
cause the}'  looked  so  dull.  The  prisoner  replied,  "  I  assure  you  they 
are  Forest  coal,  and  the  reason  of  their  looking  so  dull  is  because 
they  have  been  standing  in  the  rain  all  night ;  there  is  15  cwt.  of  them, 
for  I  paid  for  14  cwt.  at  the  coal-pits,  and  they  gave  me  1  cwt.  in." 
On  this  the  prosecutor  bought  the  coal,  and  paid  7s.  6<7.  for  the  load. 
The  prisoner  unloaded  the  cart,  and  packed  the  coals  in  the  prosecu- 
tor's coal-place.  When  the  prosecutor  saw  the  coals  in  the  coal-place, 
they  appeared  to  be  much  too  small  a  quantity  to  weigh  15  cwt.,  and  he 
had  them  weighed,  when  it  was  found  that  they  weighed  8  cwt  only. 


740  EEGINA   V.   EAGG.  [CHAP.  XV. 

The  prisoner  had  at  this  time  received  his  money  and  gone  away, 
but  the  prosecutor  went  after  him,  challenging  him  with  the  fraud,  and 
asking  for  redress.  The  prisoner,  however,  refused  to  make  any,  stat- 
ing "  that  he  did  not  make  childish  bargains,  and  that  the  prosecutor 
could  not  do  anything  to  him,  because  he  had  not  sold  the  coal  by 
weight,  but  by  the  load." 

The  prosecutor  stated  that  he  had  bought  the  coal  on  the  representa- 
tion of  the  prisoner  that  there  were  15  cwt.,  and  the  size  of  the  cart 
and  the  appearance  of  the  coal  therein,  warranted  the  belief  that  there 
were  15  cwt. ;  but  it  turned  out  that  the  coal  was  loaded  in  a  particular 
manner,  technically  known  as  "  tunnelling  ;  "  that  is,  the  coal  (which  ia 
in  large  lumps)  is  so  built  up  in  the  cart,  that  one  lump  rests  on  the 
edges  of  that  below  it,  and  large  spaces  are  left  between  the  lumps  of 
coal,  and  thus  there  is  an  appearance  of  a  greater  quantity  of  coal  than 
there  actually  is. 

From  further  evidence,  it  appeared  that  the  coal  was  not  Forest 
coal  at  all,  and  had  not  been  bought  at  the  pits,  but  was  Rutland  coal, 
and  bought  that  same  morning  at  a  wharf  in  the  town  of  Loughborough  ; 
that  the  cart,  when  loaded  at  the  wharf,  had  weighed  8  cwt.  only,  and 
although  the  prisoner  stated  that  other  coal  had  been  added  to  it  from 
another  cart-load  purchased  at  the  same  time  from  the  wharf,  there  was 
no  evidence  of  this  produced  at  the  trial. 

It  further  appeared  that  on  the  same  day,  and  a  very  short  time 
after  the  coal  was  sold  to  the  prosecutor,  the  prisoner  had  offered  the 
same  load  to  another  person  as  containing  13  cwt.,  but  on  looking  at 
the  cart  it  was  evident  that  the  coal  was  "tunnelled,"  and  the  pris- 
oner was  then  and  there  challenged  with  the  fact,  and  told  that  there 
was  not  above  8  cwt.  in  the  cart,  or  10  cwt.  at  the  most. 

The  prisoner  was  not  defended  by  counsel,  and  the  jury  found  him 
guilty. 

With  respect  to  the  false  pretence  as  to  the  "character"  of  the 
coal,  it  appeared  to  me,  on  inquiring  of  the  witnesses,  that  there  was 
not  much  real  difference  in  value  between  the  Forest  coal  and  the 
Rutland  coal,  and  that  the  preference  of  one  over  the  other  was 
rather  according  to  the  idea  of  the  customer,  than  the  actual  value 
of  the  article ;  and  I  should  not  have  considered  it  a  case  of  false 
pretences  under  the  statute  had  this  been  the  only  misrepresentation  ; 
but  I  considered  that  the  evidence  showed,  not  merely  a  false  state- 
ment as  to  the  quantity,  but  a  preconceived  intention  to  defraud,  and 
a  mode  of  packing  the  coal,  resorted  to  for  the  purpose  of  fraud,  and 
that  therefore  the  jury  properly  found  the  prisoner  guilty. 

On  referring,  however,  to  the  case  of  Reg.  v.  Sherwood,  I  found  that 
some  of  the  learned  judges  who  gave  judgment  therein  had  apparently 
drawn  a  distinction  between  the  case  of  a  false  representation  made 
during  the  bargaining,  and  that  made  after  the  sale  was  completed  ; 
and  in  the  present  case,  "  as  the  false  pretence  was  made  in  the  course 
of  the  progress  of  a  sale,"  I  did  not  feel  justified  la  sentencing  the 


SECT.  III.]  REGINA    V.    R.VCG. 


741 


prisoner  until  the  subject  had  come  uuder  the  consideration  of  the 
judges.  I  therefore  postponed  the  sentence,  and  directed  that  tlie 
prisoner  might  be  Hberated  on  bail  to  appear  and  receive  sentence 
at  the  next  Easter  Sessions. 

IIv.  J.  H08KIN8,  Deputy  Chairman. 

No  counsel  were  instructed  eitlKr  for  the  prosecutor  or  prisoner. 

Ekle,  C.J.  We  are  all  of  opinion  that  the  conviction  in  each  case 
was  right.  With  reference  to  the  case  of  Joseph  liagg,  tliere  was  a 
false  representation  that  the  qu.inlity  of  coals  in  the  cart  was  13  cwt., 
whereas  only  about  8  cwt.  were  delivered,  and  there  was  a  pretence  of 
a  delivery  of  7  cwt ,  no  part  of  which  had  been  delivered.  And  al- 
though the  falsehood  was  only  as  to  part  of  the  entire  quantity  to  he 
delivered,  yet  this  falls  within  the  class  of  cases  of  false  rejtrt-Henta- 
tions  as  to  the  quantity  of  gocKls  delivered,  the  priucii.lc  of  wiiich  is 
a  fi\]sc  pretence  of  a  matter  of  fact  cognisable  by  the  senses,  which  is 
an  indictable  offence  within  the  statute.  With  regard  to  the  case  of 
Thomas  Goss,  there  was  also  a  false  pretence  of  a  matter  of  fact 
within  the  cognisance  of  the  senses;  for  by  a  sample  which  he  falselv 
represented  as  a  part  of  the  very  cheese  to  be  sold,  but  which  was  part 
of  a  cheese  altogether  different  both  in  substance  and  value,  he  procured 
the  purchaser  to  buy  the  inferior  cheese,  and  part  with  his  money.  That 
was  a  false  pretence  as  to  the  substance  of  the  article  for  sale,  whereby 
the  prisoner  was  enabled  to  pass  off  a  counterfeit  article  as  and  for 
the  genuine  substance.  In  Reg.  v.  Roebuck,  7  Cox  Crim.  Cas.  126, 
it  was  held  that  falsely  representing  to  a  pawnbroker  that  a  chain  is 
silver,  the  prisoner  knowing  it  to  be  a  base  metal,  is  indictable.  So 
here  the  drawing  from  the  prisoner's  pocket,  samples  from  another 
cheese,  and  not  the  cheese  intended  for  sale,  which  was  a  totAllv  dif- 
ferent substance,  and  falsely  pretending  to  the  purchaser  that  those 
samples  were  part  of  the  substance  which  he  was  to  buv,  that  is 
equally  an  indictable  offence  within  the  statute,  and  falls  within  the 
class  of  cases  to  which  belong  Reg.  v.  Abbott,  where  the  substance  of 
the  purchase  was  a  cheese  of  the  identical  character  with  the  taster ; 
and  Reg.  v.  Dundas,  6  Cox  Crim.  Cas.  380,  where  the  article  sold 
was  falsely  pretended  to  be  Everetfs  blacking,  which  was  a  known 
article  in  the  neighborhood,  whereas  in  fact  the  article  passed  off  was 
a  counterfeit.  In  the  case  of  Reg.  v.  Bryan,  the  case  of  the  plateii 
spoons  represented  as  equal  to  Elkington's  A,  the  judges  who  consti- 
tuted the  majority  decided  that  case  on  the  principle,  that  indefinite 
praise  on  a  matter  of  opinion,  is  not  within  the  limit  of  indictable 
offences.  A  great  deal  of  dissatisfaction  has  been  expressed  with  that 
decision,  as  if  it  must  operate  as  an  encouragement  to  falsehooti  and 
fraud,  and  so  lead  to  a  great  deal  of  mischief;  but  it  should  l>o  recol- 
lected what  an  extreme  calamity  it  is  to  a  respectable  man,  to  have  to 
stand  his  trial  at  a  criminal  bar  as  a  cheat,  upon  an  indictment  at  tho 
instance  of  a  dissatisfied  purchaser.     It  is  easy  for  an  imaginative 


742  KEGINA   V.   JENNISON.  [CHAP.  XV. 

person  to  fall  into  an  exaggeration  of  praise  upon  the  sale  of  his 
floods.  And  if  such  statements  are  indictable,  a  person  who  wishes 
to  get  out  of  a  bad  bargain  made  by  his  own  negligence,  might  have 
recourse  to  an  indictment,  on  the  trial  of  which  the  vendor's  state- 
ment on  oath  would  be  excluded,  instead  of  being  obliged  to  bring  an 
action,  where  each  party  would  be  heard  on  equal  terms.  It  is  of 
great  public  importance  to  endeavor  to  draw  the  line  distinctly  between 
false  representations  which  are  indictable,  and  those  which  are  not. 
In  the  present  case  there  was  a  false  representation  that  an  article  was 
a  genuine  substance,  and  the  passing  off  a  counterfeit  substance,  and 
that  was  an  indictable  offence.  My  brother  Willes,  J.,  in  Reg.  v. 
Bryan,  threw  a  great  deal  of  light  on  the  law  as  to  false  pretences, 
and  though  he  differed  from  the  majority  of  the  judges  in  the  decision, 
he  did  not  differ  from  the  principle  of  that  decision,  but  only  upon  the 
application  of  that  principle  to  the  case.  The  majority  of  the  judges 
thought  the  representation  there  to  be  a  matter  of  opinion  only ;  my 
brother  Willes  thought  it  a  representation  of  a  matter  of  fact,  as  if  the 
representation  had  been,  there  is  as  much  silver  in  the  spoons  as  in 
Ellvington's  A,  and  in  his  judgment  it  was  the  false  representation  of 
a  definite  fact.  We  are  therefore  of  opinion  that  this  conviction  must 
be  affirmed. 

WiGHTMAN,  J.  I  am  of  the  same  opinion.  I  would  merely  add, 
with  reference  to  the  cheese  cases  and  Elkington's  case,  one  observa- 
tion. If  the  prisoner  had  said  that  the  cheeses  were  equal  to  the 
tasters  produced,  that  would  have  fallen  within  the  Elkington's  case ; 
but  he  said  to  the  prosecutor,  "  These  tasters  are  a  part  of  the  very 
cheeses  I  propose  to  sell  to  you ; "  and  therefore  it  was  a  misrepre- 
sentation of  a  definite  fact. 

The  rest  of  the  court  concurring. 

Convictions  affirmed} 


REGINA  V.   JENNISON. 
Crown  Case  Reserved.     1862. 

[Reported  9  Cox  C.  C.  158.] 

Case  reserved  for  the  opinion  of  this  court  by  Cockburn,  C.  J. 
John  Jennison  was  indicted  and  tried  before  me  at  the  last  Assizes 
for  the  county  of  Nottingham  for  obtaining  £8  from  one  Ann  Hayes 
by  false  pretences. 

The  prisoner,  who  had  a  wife  living,  had  represented  himself  to  the 
prosecutrix,  who  was  a  single  woman  in  service,  as  an  unmarried  man, 

1  Ace.  Reg.  V.  Foster,  2  Q.  B.  D.  301.  See  State  v.  Stanley,  64  Me.  157  ;  Jackson  v. 
People,  126  111.  139.  —  Ed. 


SECT.  III.]  REGINA   V.  JKNNISON. 


7-13 


and  pretending  that  he  was  about  to  nuirry  hur,  induced  her  to  h:u.d 
over  to  him  a  sinn  of  i«  out  of  hi-r  wages  reci-ived  on  leaving  hir  sci- 
vice,  representing  that  he  wouUl  go  to  Liverpool,  and  with  the  luout-y 
furnish  a  house  for  them  to  live  in,  and  that  having  done  so  he  would 
return  and  marry  her.  Having  obtained  the  money  the  prisoner  wttit 
away  and  never  returned. 

The  prosecutrix  stated  that  she  had  been  indued  to  purl  with  her 
money  on  tlie  faith  of  the  rei)resentation  of  tlie  prisoner  that  he  wa«  a 
single  man,  that  he  would  furnish  a  house  with  the  money,  an<l  would 
then  marry  her. 

There  was  no  doubt  that  these  reitreseutations  were  false,  and  tlmt 
morally  the  money  had  been  obtained  by  false  pret^Mices.  iJul  it  wa.s 
contended  on  the  part  of  tlu;  prisoner  that,  as  the  i)roKecutrix  had  been 
induced  to  part  with  the  money  by  the  joint  operation  of  the  three  repre- 
sentations made  by  the  prisoner,  that  he  was  unmarried,  that  he  would 
furnish  a  house  with  the  money,  and  that  he  would  then  marry  her, 
and  as  only  the  first  of  these  pretences  had  reference  to  a  present  ex- 
isting fact,  while  the  others  related  to  things  to  be  done  in  future,  the 
indictment  could  not  be  maintained. 

I  reserved  the  point,  and  the  prisoner  having  been  convicted,  have 
now  to  request  the  decision  of  the  court  upon  the  question. 

A.  E.  COCKBURN. 

No  counsel  appeared  to  argue  on  either  side. 

P^iiLE,  C.  J.  We  are  of  opinion  that  the  conviction  in  this  case  was 
proper.  The  indictment  was  for  obtaining  £8  from  Ann  Hayes  bv 
false  pretences,  and  it  was  found  by  the  jury  that  the  woman  parted 
with  the  money  on  the  false  representation  by  the  prisoner  that  he  was 
a  single  man,  and  the  promise  that  he  would  lay  out  the  money  in  fur- 
nishing a  house  for  them  to  live  in,  and  that  he  would  then  marry  her. 
It  is  perfectly  clear  that  obtaining  money  by  a  false  promise  is  not  the 
subject  of  an  indictment ;  but  here  there  was  the  false  pretence  that 
the  prisoner  was  an  unmarried  man,  which  was  an  essential  faet  in 
this  case,  and  without  which  pretence  the  prisoner  never  would  have 
obtained  the  money  from  the  woman.  Now,  one  false  fact,  by  means 
of  which  the  money  is  obtained,  sufficiently  sustains  the  indietmont, 
although  it  may  be  united  with  false  promises  which  would  not  of 
themselves  do  so.     The  conviction  therefore  was  right. 

The  other  judges  concurring, 

Convition  njfirmed.^ 

1  .Ice.  Rex  V.  Young,  Loach  (4th  ed.),  50.5,  3  T.  R.  98;  Com.  i-.  Moore,  80  Kr.  542 
See  Reg.  v.  Johnston,  2  Moo.  C  C  254.  —  Ed. 


744  COMMONWEALTH  V.   DREW.  [CHAP.  XV. 


COMMONWEALTH  v.   DREW. 
Supreme  Judicial  Court  of  Massachusetts.     1837. 

[Reported  19  Pickering,  179.] 

The  defendant  was  tried  before  Morton,  J.,  upon  two  indictments, 
in  each  of  which  he  was  chaiged  with  having  procured  money  from 
the  Hancock  Bank  in  Boston  by  false  pretences,  and  with  intent  to 
defraud  the  bank,  upon  two  several  occasions. 

The  pretences  alleged  were :  1,  that  the  defendant  assumed  the  name 
of  Charles  Adams ;  2,  that  he  pretended  that  he  wished  to  open  an 
honest  and  fair  account  with  the  Hancock  Bank,  and  to  deposit  and 
draw  for  money  in  the  usual  manner  and  ordinary  course  of  business ; 
and  3,  that  he  pretended  that  two  checks,  described  in  the  indictment, 
were  good,  and  that  he  had  in  deposit  the  amount  for  which  they  were 
drawn. 

It  was  proved,  among  other  things,  that  the  defendant  began  to 
deposit  money  in  the  bank  earl}-  in  December,  1835,  and  that  he  con- 
tinued to  deposit  and  draw,  at  various  times  and  in  various  sums,  until 
the  27th  of  January,  1836,  on  which  day,  having  only  $10  deposited 
to  his  credit,  he  drew  a  check  for  $100,  which  was  paid  at  the  bank. 

On  the  30th  of  January,  1836,  a  check  for  $350  was  drawn  by  the 
defendant  and  paid  at  the  bank,  he  having  made  no  deposit  since  the 
paj-ment  of  the  check  presented  on  the  27th  of  January. 

The  defendant  deposited  and  drew  his  checks  by  the  name  of  Charles 
Adams,  and  there  was  another  person  named  Charles  Adams  who  de- 
posited at  the  bank  at  the  same  time ;  but  it  was  not  contended  on  the 
part  of  the  Commonwealth,  that  the  checks  were  paid  because  of  the 
assumption  by  the  defendant  of  the  name  of  Charles  Adams,  nor  that 
any  mistake  was  made  as  to  which  person  of  that  name  drew  the 
check. 

Samuel  B.  Dyer,  a  witness  on  the  part  of  the  Commonwealth,  testi- 
fied that  he  was  the  paying  and  receiving  teller  of  the  bank ;  that  the 
defendant  first  did  business  at  the  bank  on  the  12th  of  December,  1835  ; 
that  he  asked  to  have  a  large  bill  of  the  United  States  Bank  exchanged 
for  small  bills,  which  was  done ;  that  before  he  left  the  bank  he  made  a 
deposit  of  a  considerable  sum,  including  the  bills  just  before  received 
as  above  ;  that  being  asked  in  what  name  he  wished  to  deposit,  he  said, 
in  the  name  of  Charles  Adams ;  that  he  saw  the  defendant  several 
times  afterwards,  when  he  presented  his  checks  for  payment;  that  the 
defendant  usually  drew  his  checks  in  the  bank,  at  the  desk  kept  for 
that  purpose,  and  presented  them  himself,  and  that  this  was  usually 
done  by  him  about  12  o'clock,  the  most  busy  time  in  the  forenoon  ;  that 
the  witness  had  no  recollection  of  the  presentation  or  pa3'ment  of  either 
of  the  two  checks  in  question,  which  were  overdrafts ;  that  he  knew 


SECT.  III.]  COMMONWEALTH   V.   DKEW.  745 

they  were  paid  out  of  his  drawer  and  hy  hh  money,  Ix'cause  he  njimd 
the  checks  in  his  drawer  and  uiis.sed  sums  of  money  corre.sjKjnding  with 
the  amount  of  the  checks;  that  he  believed  that  the  cheek  of  .lanuurv 
27th  was  not  paid  by  himself,  but  by  the  bank  messc'n},'er  fur  him.  whii 
took  his  place  a  few  minutes  at  the  cuiintL-r,  tlie  messenger  having  Uj1<1 
him  he  hud  paid  a  check  of  Cliarlts  Adams;  that  the  witncHS  paid 
checks  of  the  defendant  unhesitatingly,  because  he  had  dt-jxjsiu-d  for 
some  time,  and  the  witness  presumed  his  checks  to  be  good  from  the 
general  character  of  his  account,  and  having  seen  him  conviising  with 
the  president  of  the  bank,  the  witness  presumed  he  was  ae<juaiiited 
with  the  president ;  that  if  the  witness  paid  either  of  the  two  cheek.«*  in 
question,  without  in(piiring  at  the  desk  of  the  book-keeper  or  looking 
at  the  balance-sheet  to  ascertain  whether  the  defendant  had  money  to 
that  amount  deposited,  it  was  upon  these  grounds  tliat  he  so  paid. 

It  was  in  evidence,  that  the  book-keeper's  desk  was  a  few  feet  from 
the  teller's  counter  ;  that  when  the  teller  doul)ted  whether  a  check  should 
be  paid,  he  inquired  of  the  l)ook-keeper,  or  looked  at  the  balance-sheet 
kept  by  the  book-keeper,  which  was  made  up  to  the  end  of  every  day, 
and  lay  upon  the  desk  for  the  inspection  of  the  teller  or  book-keeper  at 
all  times. 

It  was  testified  by  the  teller,  that  tlie  overdraft  of  the  27th  of  Jan- 
uary was  not  reported  for  some  days  after  it  hai>pened ;  and  the 
balance-sheet  showed  that  it  did  not  appear  upon  that  book  until  the 
1st  of  February. 

In  order  to  show  that  the  defendant  overdrew  with  a  fraudulent  intent, 
it  was  proved,  amongst  other  things,  that  he  overdrew,  alxiut  the  same 
time,  at  the  Bunker  Hill  Bank  in  Charlestowu,  and  the  Traders'  Bank 
in  Boston. 

The  counsel  for  the  defendant  contended,  that  there  was  no  evidence 
of  the  procuring  of  money  by  any  false  pretence  ;  that  the  mere  draw- 
ing a  check  and  presenting  it  at  the  counter  of  the  bank  to  the  teller 
for  payment,  no  words  being  spoken  and  no  false  api>earance  or  U^ken 
presented  or  held  out,  although  the  drawer  knew  he  had  no  fumls 
deposited  there,  was  not  a  "  false  pretence  "  within  the  meaning  of  the 
statute  upon  that  subject;  and  that  such  presentation  of  a  check,  with 
intent  to  defraud  the  bank,  and  receiving  the  money  upon  the  cheek, 
did  not  constitute  the  crime  of  obtaining  money  l)y  false  pretences,  as 
defined  by  the  statute  ;  that  it  was  no  more  than  an  appeal  to  the  books 
of  the  bank,  kept  by  the  proper  ofticer,  and  an  offer  to  receive  what 
should  there  be  found  due.  But  the  jii<lge  overruled  these  objeetions. 
and  instructed  the  jury,  that  if  they  believeil  that  the  defendant  InH-anie 
a  depositor  at  the  bank  under  a  pretence  of  doing  l)usin»'ss  there  in  the 
usual  manner,  but  with  the  fraudulent  design  to  obtain  the  money  of, 
and  cheat  the  bank,  and  drew  the  checks  and  prescnUnl  them  at  tlic 
bank  for  pajment,  knowing  that  he  iiad  not  funds  de|K)sit<-<l  suHleiont 
to  pay  them,  and  that  he  did  this  intending  to  defraud  the  l»ank  of  the 
sums  so  overdrawn,  although  no  words  were  8ix>ken  and  no  other  token 


746  COMMONWEALTH   V.   DREW.  [CHAP.  XV. 

exhibited,  and  if  he  actual!}-  got  the  mone}',  he  was  guilty  of  the  crime 
of  obtaining  money  by  false  pretences  within  the  meaning  of  the  statute. 
And  it  was  left  to  the  jury  to  decide  upon  all  the  evidence,  whether  the 
false  pretences  and  the  averments  contained  in  the  indictment  were 
proved  to  their  satisfaction  or  not. 

The  jury  found  a  verdict  against  the  defendant  upon  both  indict- 
ments. 

The  defendant  moved  for  a  new  trial,  because  of  the  ruling  and-  in- 
structions of  the  judge,  and  because  the  verdict  as  to  the  presentation 
of  the  checks  by  the  defendants  was  not  supported  by  the  evidence. 

S.  H.  Fuller  supported  the  motion.  As  to  the  third  false  pretence, 
he  cited  St.  1815,  c.  136  ;  3  Chit.  Crim.  Law,  997  ;  Allen's  case,  3  City 
Hall  Recorder,  118;  Stuyvcsant's  case,  4  City  Hall  Recorder,  156; 
People  V.  Conger,  1  Wheeler's  Crim.  Cas.  448 ;  People  v.  Dalton, 
2  Wheeler's  Crim.  Cas.  178;  Witchell's  case,  2  East's  P.  C.  830;  Story's 
case,  Russ.  &  Ryan,  81 ;  Freeth's  case,  ib.  127. 

Austin  (Attorney-General),  and  Parker  (District-Attorne}-),  for  the 
Commonwealth,  cited  Roscoe  on  Crim.  Ev.  (2d  ed.)  417  ei  seq.  ; 
Lockett's  case,  1  Leach,  110;  Commonwealth  v.  Wilgus,  4  Pick.  177; 

2  East's  P.  C.  828  ;  Young  v.  The  King,  3  T.  R.  102  ;  Rex  v.  Jackson, 

3  Campb.  370. 

Morton,  J.,  delivered  the  opinion  of  the  court.  These  indictments 
are  founded  upon  St.  1815,  c.  136.  The  first  section  provides,  "  that 
all  persons  who  knowingly  and  designedl}',  by  false  pretence  or  pre- 
tences, shall  obtain  from  an}'  person  or  persons  money,  goods,  wares, 
merchandise  or  other  things,  with  intent  to  cheat  or  defraud  an}'  person 
or  persons  of  the  same,  shall  on  conviction "  be  punished,  &c.,  as 
therein  specified.  This  section,  which  is  a  copy  of  St.  30  Geo.  II.  c. 
24,  §  1,  is  revised  and  combined  with  some  provisions  in  relation  to 
other  similar  offences,  in  the  Revised  Stat.  c.  126,  §  32. 

To  cojistitute  the  offence  described  in  the  statute  and  set  forth  in 
these  indictments,  four  things  must  concur  and  four  distinct  averments 
must  be  proved. 

1.  There  must  be  an  intent  to  defraud  ; 

2.  There  must  be  an  actual  fraud  committed ; 

3.  False  pretences  must  be  used  for  the  purpose  of  perpetrating  the 
fraud  ;  and, 

4.  The  fraud  must  be  accomplished  by  means  of  the  false  pretences 
made  use  of  for  the  purpose,  viz.,  they  must  be  the  cause  which  induced 
the  owner  to  part  with  his  property. 

It  is  very  obvious  that  three  of  the  four  ingredients  of  the  crime  exist 
in  the  present  case.  The  fraudulent  intent,  the  actual  perpetration  of 
the  fraud,  and  the  fact  that  some  of  the  pretences  used  were  the  means 
by  which  it  was  accomplished,  are  established  by  the  verdict  of  the 
jury.  And  although  the  prisoner's  counsel  has  objected  to  the  sufficiency 
of  the  evidence,  yet  we  see  no  reason  to  question  the  correctness  of  their 
decision.     It  only  remains  for  us  to  inquire,  whether  the  artifices  and 


SECT.  III.]  COMMONWEALTH   V.   DREW.  747 

deceptions  practised  by  the  defendant,  and  by  means  of  whioh  be 
obtained  the  money,  are  tbe  false  pretences  conlc-niplated  by  the 
statute. 

The  pretences  described  in  tlie  indictments  and  alleged  and  shown  to 
be  false,  are, 

1.  That  the  defendant  assumed  the  name  of  Charles  Adams  ; 

2.  That  he  pretended  that  he  wished  to  open  an  honesl  ami  fair  ac- 
count with  the  Hancock  Bank,  and  to  deposit  anil  draw  for  money  in 
the  usual  manner  and  ordinary  course  of  Ijusiness  ; 

3.  That  he  pretended  tliat  the  checks  were  good,  and  ihat  he  had  in 
deposit  the  amount  for  which  they  were  drawn. 

The  first  is  clearly  a  false  i)retcnce  within  the  meaning  of  the  statute  ; 
and  liad  the  money  been  obtainetl  l»y  means  of  the  assumption  of  this 
fictitious  name,  there  could  be  no  doubt  of  the  legal  guilt  of  the 
defendant.  The  eminent  lawyer  who  filled  the  olllce  of  mayor  of  New 
York,  when  the  adjudication  referred  to  by  the  defendant's  counsel  was 
made,  says  the  false  pretences  must  be  the  sole  inducement  which 
caused  the  owner  to  part  with  his  property.  People  /■.  Conger,  1 
Wheeler's  Crim.  Cas.  448;  People  v.  Dalton,  2  ib.  KJl.  This  jK^int  is 
doubtless  stated  too  strongly  ;  and  it  would  be  more  correct  to  say, 
that  the  false  pretences,  either  with  or  without  the  cooperation  of  other 
causes,  had  a  decisive  influence  upon  the  mind  of  the  owner,  so  that 
without  their  weight  he  would  not  have  parted  with  his  proiK-rty. 
People  V.  Haynes,  11  Wendell,  557.  But  in  this  case  the  assumcil 
name,  so  far  from  being  the  sole  or  decisire  inducement,  is  clearly 
shown  to  have  had  no  influence  whatever.  The  bank  officers  did  not 
confound  the  defendant  with  Charles  Adams,  and  it  does  not  apjiear 
that  the  defendant  knew  that  there  was  any  other  person  by  that  name. 
He  never  claimed  any  credit  on  account  of  his  name,  and  the  coincidence 
might  have  been  accidental.  At  any  rate,  it  had  no  influence  ujxjn  the 
credit  of  either,  nor  any  effect  upon  their  accounts  or  the  payment  of 
their  checks. 

2.  The  opening  and  keeping  an  account  with  the  Hancock  Bank 
might  have  been,  and  doubtless  was,  a  part  of  a  cunning  stratnL'em.  by 
which  the  defendant  intended  to  practise  a  fraud  upon  that  bank.  But 
the  business  was  done  and  the  account  kept  in  the  usual  manner.  The 
defendant  made  his  deposits  and  drew  his  checks  like  other  customers 
of  the  bank.  He  made  no  representation  of  the  course  he  intended  to 
pursue,  and  gave  no  assurance  of  integrity  and  fair  dealing;  and  we 
can  see  nothing  in  the  course  of  this  business  constituting  it  a  false 
pretence,  which  would  not  involve  the  account  of  any  depositor  who 
might  overdraw  in  the  same  category. 

3.  The  pretence,  if  any  such  there  were,  that  the  check  was  goo<1.  or 
that  the  defendant  had  funds  in  tiie  bank  for  which  he  had  a  ritrht  to  dr.iw. 
was  false.  He  had  no  such  funds.  Did  the  defendant  make  any  such 
pretence  ?  He  made  no  statement  or  declaration  to  the  officers  of  the 
bank.     He  merely  drew  and  presented  his  checks,  and  they  wore  paid 


748  COMMONWEALTH  V.   DREW.  [CHAP.  XV. 

This  was  done  in  the  usual  manner.     If,  then,  he  made  any  pretence,  it 
must  result  froui  the  acts  themselves. 

What  is  a  false  pretence,  within  the  meaning  of  the  statute  ?  It  may 
be  defined  to  be  a  representation  of  some  fact  or  circumstance,  calcu- 
lated to  mislead,  which  is  not  true.  To  give  it  a  criminal  character 
there  must  be  a  scienter  and  a  fraudulent  intent.  Although  the  lan- 
guage of  the  statute  is  very  broad,  and  in  a  loose  and  general  sense 
would  extend  to  every  misrepresentation,  however  absurd  or  irrational, 
or  however  easily  detected,  yet  we  think  the  true  principles  of  con- 
struction render  some  restriction  indispensable  to  its  proper  application 
to  the  principles  of  criminal  law  and  to  the  advantageous  execution  of 
the  statute.  We  do  not  mean  to  say  that  it  is  limited  to  cases  against 
which  ordinary  skill  and  diligence  cannot  guard,  for  one  of  its  principal 
objects  is  to  protect  the  weak  and  credulous  from  the  wiles  and  strata- 
gems of  the  artful  and  cunning ;  but  there  must  be  some  limit,  and  it 
would  seem  to  be  unreasonable  to  extend  it  to  those  who,  having  the 
means  in  their  own  hands,  neglect  to  protect  themselves.  It  may  be 
difficult  to  draw  a  precise  line  of  discrimination  applicable  to  every 
possible  contingency,  and  we  think  it  safer  to  leave  it  to  be  fixed  in 
each  case  as  it  may  occur.  2  East's  P.  C.  828  ;  Young  v.  The  King,  3 
T.  R.  98. 

It  is  not  the  policy  of  the  law  to  punish  criminally  mere  private 
wrongs  ;  and  the  statute  may  not  regard  naked  lies  as  false  pretences. 
It  requires  some  artifice,  some  deceptive  contrivance,  which  will  be 
likely  to  mislead  a  person  or  throw  him  off  his  guard.  He  may  be 
weak  and  confiding,  and  his  very  imbecility  and  credulity  should  receive 
all  practical  protection.  But  it  would  be  inexpedient  and  unwise  to 
regard  every  private  fraud  as  a  legal  crime.  It  would  be  better  for 
society  to  leave  them  to  civil  remedies.  Roscoe  on  Crim.  Ev.  (2d  ed.) 
419  ;  Goodhall's  case,  Russ.  &  Ryan,  461. 

The  pretence  must  relate  to  past  events.  Any  representation  or 
assurance  in  relation  to  a  future  transaction  may  be  a  promise  or  cove- 
nant or  warranty,  but  cannot  amount  to  a  statutory  false  pretence. 
They  aflford  an  opportunity  for  inquiring  into  their  truth,  and  there  is  a 
remedy  for  their  breach,  but  it  is  not  by  a  criminal  prosecution.  Stuyve- 
sant's  case,  4  City  Hall  Recorder,  156  ;  Roscoe  on  Crim.  Ev.  (2d  ed.) 
422  ;  Rex  v.  Codrington,  1  Car.  &  Payne,  661.  The  only  case.  Young 
V.  The  King,  3  T.  R.  98,  which  has  been  supposed  to  conflict  with  this 
doctrine,  clearly  supports  it.  The  false  pretence  alleged  was,  that  a 
bet  had  been  made  upon  a  race  which  was  to  be  run.  The  contingency 
which  was  to  decide  the  bet  was  future,  but  the  making  of  the  bet 
was  past.  The  representation  which  turned  out  to  be  false  was,  not 
that  a  race  would  be  run,  but  that  a  bet  had  been  made.  The  false 
pretence,  therefore,  in  this  case,  related  to  an  event  already  completed 
and  certain,  and  not  to  one  which  was  thereafter  to  happen  and  conse- 
quently uncertain ;  and  the  decision  was  perfectly  consistent  with  the 
doctrine  and  law  here  laid  down. 


SECT.  III.]  COMMONWKALTII   V.    DRKW.  749 

A  false  pretence,  being  a  misrepresentation,  mny  he  made  in  any  of 
the  ways  in  whicli  ideas  may  be  eomuiunicuteU  from  one  person  to 
another.  It  is  true  that  the  eminent  jurist  before  referred  to  in  the 
cases  cited  held  that  it  could  be  made  only  by  verl)al  comniunifatiorih. 
either  written  or  oral.  W  tiiis  be  correct,  no  act  or  j^esluies,  however 
significant  and  impressive,  could  come  within  the  sUiLiile  ;  and  mutt-b, 
though  capable  of  conveying  tlicir  ideas  and  intentions  in  the  mcisl  clear 
and  forcible  manner,  could  hardly  be  brought  within  its  prohibiiion. 
Can  it  make  any  difference  in  law  or  conscience  whether  a  faUe  repre- 
sentation be  made  by  words  or  by  the  expressive  motions  of  the  dmnl)? 
Each  is  a  language.  Words  are  but  the  signs  of  idejis,  and  if  the 
ideas  are  conveyed,  the  channel  of  communication,  or  the  garb  in 
which  they  are  clothed,  is  but  of  secondary  im{)ortance.  And  we  feel 
bound  to  dissent  from  this  part  of  these  decisions.  In  tliis  we  are 
supported  by  the  English  cases.  Rex  c.  Story,  Uuss.  &  Kyan,  Ml  ; 
Re.x  V.  Freeth,  il).  127. 

The  representation  is  inferred  from  the  act,  and  the  pretence  may  be 
made  by  implication  as  well  as  by  verbal  declaration.  In  the  case  at 
bar  the  defendant  presented  his  own  checks  on  a  bank  with  which  he 
had  an  account.  What  did  this  imply  ?  Not  necessarily  that  he  had 
funds  there.  Overdrafts  are  too  frequent  to  be  classed  with  false  pre- 
tences. A  check,  like  an  order  on  an  individual,  is  a  mere  re<piest  t<j 
pay ;  and  the  most  that  can  be  inferred  from  passing  it  is,  that  it  will 
be  paid  when  presented,  or  in  other  words  that  the  drawer  has  in  the 
hands  of  the  drawee  either  funds  or  credit.  If  the  drawer  {)a.ssc8  a 
check  to  a  third  person,  the  language  of  the  act  is,  that  it  is  good  and 
will  be  duly  honored ;  and  in  such  case,  if  he  knew  that  he  had 
neither  funds  nor  credit,  it  would  probably  be  holden  to  be  a  false 
pretence. 

In  the  case  of  Stuyvesant,  4  City  Hall  Recorder,  156,  it  was  decided 
that  the  drawing  and  passing  a  check  was  not  a  false  pretence.  Hut  in 
Rex  V.  Jackson,  3  Campb.  370,  it  was  ruled  that  the  drawing  and  pass- 
ing a  check  on  a  banker  with  whom  the  drawer  had  no  account  and 
which  he  knew  would  not  be  paid,  was  a  false  pretence  within  the 
statute.  This  doctrine  appears  to  be  approved  by  all  the  text  writers, 
and  we  are  disposed  to  adopt  it.     Roscoe  on  Crim.  Ev.  (2d  ed.)  419. 

But  to  bring  these  cases  within  the  statute,  it  must  be  shown  that  the 
drawer  and  utterer  knew  that  the  check  would  not  be  paid,  and  in  the 
cases  cited  it  appeared  that  he  had  no  account  with  the  banker.  In 
these  respects  the  case  at  bar  is  ver}*  distinguisliable  from  tlie  cases 
cited.  If  the  checks  in  question  had.  boon  p.assed  to  a  third  person,  it 
could  not  be  said  that  the  defendant  knew  that  they  would  not  l»e  paid. 
On  the  contrary,  he  had  an  open  account  with  the  bank,  ami  although 
he  knew  there  was  nothing  due  to  him,  yet  he  might  suppose  that  they 
would  be  paid  ;  and  the  fact  that  he  presented  them  himself,  dhows 
that  he  did  not  know  that  they  would  be  refused. 

The  defendant  presented  the  checks  himself,  at  the  counter  of  the 


750  COMMONWEALTH   V.   NORTON.  [CHAP.  XV. 

bank.  They  were  mere  requests  to  pay  to  him  the  amount  named  in 
them,  couched  in  the  appropriate  and  only  language  known  there,  and 
addressed  to  the  person  whose  peculiar  province  and  duty  it  was  to 
know  whether  they  ought  to  be  paid  or  not.  He  complied  with  the 
requests,  and  charged  the  sums  paid  to  the  defendant,  and  thus  created 
a  contract  between  the  parties.  Upon  this  contract  the  bank  must  rely 
for  redress. 

This  case  lacks  the  elements  of  the  English  decisions;  and  we 
think  it  would  be  an  unwise  and  dangerous  construction  of  the  statute 
to  extend  it  to  transactions  like  this.  The  case  may  come  prett}-  near 
the  line  which  divides  private  frauds  from  indictable  offences ;  and  at 
first  we  were  in  doubt  on  which  side  it  would  fall.  But,  upon  a  careful 
examination,  we  are  well  satisfied  that  it  cannot  properly  be  brought 
within  the  statute.  Verdict  set  aside  and  new  trial  granted.^ 


COMMONWEALTH  v.   NORTON. 
Supreme  Judicial  Court  of  Massachusetts.     1865. 

[Reported  11  Allen,  266.] 

Indictment  for  obtaining  money  under  false  pretences.  The  first 
count  charged  that  the  defendant  falsely  pretended  to  Charles  Council 
that  a  few  days  before  he,  the  defendant,  was  in  Connell's  place  of 
business  and  had  two  drinks,  and  gave  to  Council  five  dollars,  from 
which  Connell  was  to  take  twenty  cents,  but  that  Connell  did  not  re- 
turn any  change ;  and  Connell,  believing  said  false  representations, 
and  being  deceived  and  induced  thereby,  paid  to  Norton  four  dollars 
and  eighty  cents ;  whereas  in  truth  Norton  had  not  given  the  five 
dollars  to  Connell,  and  the  various  representations  of  Norton  were  all 
false. 

There  were  three  other  counts  charging  similar  transactions  with 
other  and  different  persons. 

The  defendant  pleaded  guilty  to  this  indictment  in  the  Superior  Court, 
and  thereupon  Lord,  J.,  deeming  the  questions  of  law  arising  thereon, 
as  to  whether  the  allegations  of  the  indictment  constituted  an  indictable 
offence,  so  important  and  doubtful  as  to  require  the  decision  of  this 
court,  reported  the  same,  by  the  consent  and  desire  of  the  defendant. 

No  counsel  appeared  for  the  defendant. 

Reed,  A.  G.,  for  the  Commonwealth,  cited  Commonwealths.  Drew, 
19  Pick.  182  ;  The  People  v.  Johnson,  12  Johns.  293  ;  Young  v.  The 
King,  3  T.  R.  102 ;  Rex  v.  Wheatly,  2  Burr.  1128. 

Dewet,  J.    It  seems  to  us  that  the  present  case  is  one  which  the 

1  See  Rex  v.  Parker,  7  C  &  P.  825  ;  People  r.  Wasservogle,  77  Cal.  173;  Barton 
V.  People,  135  111.  405.    Compare  Com.  v.  Schwartz  (Ky.)  18  S.  W.  358.  — Ed. 


SKCT.  111.]  COMMON WKALTH    V.   WHITCO^TB.  751 

court  mtiy  properly  consuk'r  :i8  not  einhraced  wiiliin  the  intentiou  of 
the  frainers  of  the  .stiituto  puuishing  the  ohtaiuiug  of  gixnls  by  wilfully 
false  pretences.  The  case  as  prcHeiited  by  tlie  iudictiuent  is  the  naki-.i 
case  of  a  wilfully  false  aJlinuatiou,  mmli;  to  a  party  who  ha<l  like 
means  of  knowloil^e  whether  the  allinnation  was  trut-  or  false  tm  the 
party  who  niade  it.  The  indictment  alh'«,'es  the  false  statements  U> 
have  been  that  the  same  person  alleged  to  have  been  di-frauded  had 
on  a  previous  day  named  received  of  the  defendant  a  cirtain  bankl.ill 
for  the  payment  of  certain  "drinks"  furnished  to  tin;  defendant,  and 
had  not  given  baek  any  change.  The  case  was  one  of  a  deman<l  of 
money  as  of  right,  growing  out  of  what  might  have  been  an  illegal  Hale 
of  liquors,  and  was  yielded  to  by  the  seller,  he  being  i)ersonally  connected 
with  all  the  alleged  facts,  and  voluntarily  submitting  to  the  ilemand 
thus  made  upon  him.  It  was  said  by  this  court  in  Commonwealth  r. 
Drew,  ly  Pick.  181,  that  "  altiiougii  the  language  of  the  statute  (.St. 
1815,  c.  13G)  is  very  broad,  and  in  a  loose  and  general  sense  would 
extend  to  every  misrepresentation,  however  absurd  or  irrational  or 
however  easily  detected  ;  yet  we  think  the  true  principles  of  construc- 
tion render  some  restriction  in(lisi)ensable  to  its  proper  appliealion. 
...  It  may  be  ditllcult  to  draw  a  precise  line  of  discrimination  appli- 
cable to  every  possible  contingency,  and  we  think  it  safer  to  leave  it 
to  be  fixed  in  each  case  as  it  may  occur." 

These  remarks  apply  equally  to  Gen.  Sts.  c.  Ifil,  §  ."I,  and  in  tiie 
opinion  of  the  court  the  facts  alleged  in  this  indictment  do  not  present 
a  case  which  should  be  held  to  fall  within  the  spirit  and  purpose  of 
the  statute.  We  are  aware  that  some  of  the  English  judges  have  given 
a  more  extended  construction  of  their  statute  in  cases  that  have  there 
arisen.  Judgment  arrested.^ 


COMMONWEALTH  v.  WIIITCOMB. 
Supreme  Judicial  Couut  of  Massachusetts.     1871. 

[Reported  107  Massachusetts,  486.] 

Chapman,  C.  J.  By  the  Gen.  Stats,  c.  101,  §  .54,  whoever  "  design- 
edly, by  a  false  pretence  or  b}'  a  privy  or  false  token,  and  with  intent 
to  defraud,  obtains  from  another  person  any  property,"  «fec.,  "  shall  l>e 
punished,"  &c.  The  defendant  falsely  pretended  to  the  Reverend  Mr. 
Peck,  a  Methodist  clergyman,  tliat  he  was  himself  a  Methodist  clergy- 
man, and  pastor  of  a  Methodist  church  in  Waterville,  Kansa.'?,  ami  th.it 
on  the  preceding  Lord's  day  he  had  i)reached  in  the  chiireli  of  the  Kcv- 
erend  Charles  Fowler,  of  Chicago ;  that  he  was  poor,  penniless,  and 

>  Contra  Reg.  v.  Woollej,  1  Den.  C.  C.  559  ;  Rep.  r.  Jes-sop,  7  dx  C.  C.  399.  S<* 
Reg.  V.  Coulsou,  1  Den.  C.  C.  592.     Compare  Com.  i;.  Leo,  149  Masa  181.  —  Kn. 


752  COMMONWEALTH   V.    HARKINS.  [CHAP.  XV. 

utterl}-  destitute,  and  had  that  da}'  been  robbed  of  all  bis  money  ;  and 
he  thereby  obtained  of  Mr.  Peck  six  dollars  as  a  charity.  He  after- 
wards admitted  that  these  representations  were  false.  His  only  defence 
is,  that  the  statute  does  not  include  cases  where  the  money  is  parted 
with  as  a  charitable  donation. 

But  it  is  obvious  that  the  case  comes  within  the  words  of  the  statute. 
It  comes  also  within  the  reason  of  the  statute.  There  is  as  much  reason 
for  protecting  persons  who  part  with  their  money  from  motives  of  benev- 
olence, as  those  who  part  with  it  from  motives  of  self-interest.  The 
law  favors  charity  as  well  as  trade,  and  should  protect  the  one  as  well 
as  the  other  from  imposture  by  means  of  false  pretences.  Obtaining 
money  by  means  of  letters  begging  for  charity  on  false  pretences  is  held 
to  be  within  the  English  statute  (7  &  8  Geo.  IV.  c.  29,  §  53),  which  is 
quite  similar  to  ours.  Regina  v.  Jones,  1  Denison,  551 ;  Regina  v. 
Hensler,  11  Cox  Crim.  Cas.  570. 

A  contrary  doctrine  has  been  held  in  New  York.  People  vi.  Clough, 
17  Wend.  351.  The  court  admitted  that  the  crime  was  of  a  dark  moral 
grade,  and  was  within  the  words  of  the  statute  of  New  York,  which  was 
copied  from  the  English  statute  of  30  Geo.  II.  c.  24.  They  adopted 
that  construction  chiefly  on  the  ground  that  the  preamble  to  the  statute 
referred  to  trade  and  credit.  But  our  statute,  like  the  existing  English 
statute,  refers  to  no  such  matter,  and  is  not  restricted  by  any  preamble. 

£Jxceptions  overruled. 


COMMONWEALTH  v.  HARKINS. 
Supreme  Judicial  Court  of  Massachusetts.     1886. 

[Reported  128  Massachusetts,  79.] 

Colt,  J.^  The  defendant  was  indicted  for  obtaining  money  from  the 
city  of  Lynn  by  false  pretences.  He  moved  to  quash  the  indictment  on 
the  ground  that  it  did  not  set  forth  an  offence  known  to  the  law. 

It  is  alleged  in  substance  that  the  defendant  falsely  represented  to 
the  city  of  Lynn,  through  its  agent,  the  city  solicitor,  that  a  street 
which  the  city  was  bound  to  repair  had  been  suffered  to  be  out  of  repair, 
and  that  the  defendant,  while  travelling  thereon  with  due  care,  was  in- 
jured by  the  defect ;  that  the  defendant  at  the  same  time  exhibited  an 
injury  to  his  foot  and  ankle,  and  represented  that  it  was  caused  by  the 
alleged  defect.  It  is  further  alleged  that  the  city  and  its  solicitor  were 
deceived  by  these  representations,  and,  being  induced  thereby,  agreed 
to  the  entry  of  a  judgment  against  the  city  in  a  suit  then  pending  in 
favor  of  the  defendant  in  this  case  ;  and  upon  the  entry  thereof  paid  the 
amount  of  the  same  to  him.     It  is  not  alleged  that  the  suit  was  to 

1  The  opinions  only  are  given ;  they  sufiBciently  state  the  case. 


SECT.  III.]  COMMONWEALTH   V.    IIARKINS.  753 

recover  damages  on  account  of  the  defendant's  injury  from  the  alleged 
defect;  but  we  assume  that  this  was  so,  fur  othcrwihe  there  coulil  U-  no 
possible  connection,  iininediate  or  rt-niote,  hetwicn  the  prtteiices 
charged  and  tlie  pa}  luent  of  the  money  in  satibfaction  of  the  judgment 
recovered. 

In  the  opinion  of  a  majority  of  the  court,  this  indictment  is  defective. 
The  facts  stated  do  not  constitute  tlie  olfence  of  obtaining  nxjney  by 
false  pretences.  The  allegations  are,  that  an  agieemenl  that  judgment 
should  be  rendered  was  obtained  by  tiie  pretences  used,  and  that  the 
money  was  paid  by  the  city  in  satisfaction  of  that  judgment.  It  is  not 
alleged  that,  after  the  judgment  was  rendered,  any  false  pretences  were 
used  to  obtain  the  money  due  upon  it;  and,  even  with  proper  allega- 
tions to  that  effect,  it  has  been  held  that  no  indictment  lies  agaiiiht  one 
for  obtaining  by  such  means  that  which  is  justly  due  him.  Tliere  is 
no  legal  injur}'  to  the  party  who  so  pays  what  in  law  he  is  l)ound  to 
pa}'.  Commonwealth  r.  McDufTy,  126  Mass.  4G7  ;  People  v.  Thomas, 
3  Ilill,  169  ;  Rex  v.  Williams,  7  Car.  &  P.  354.  A  judgment  rendereti 
by  a  court  of  competent  jurisdiction  is  conclusive  evidence  between  the 
parties  to  it  that  the  amount  of  it  is  justly  due  to  the  judgment  credi- 
tor. Until  the  judgment  obtained  by  the  defendant  was  revei-sed,  the 
city  was  legally  bound  to  pay  it,  notwithstanding  it  may  have  then  had 
knowledge  of  the  original  fraud  by  whicii  it  was  obtained  ;  and  with  or 
without  such  knowledge  it  cannot  be  said  that  the  money  paid  upon  it 
was  in  a  legal  sense  obtained  by  false  pretences,  which  were  used  only 
to  procure  the  consent  of  the  city  that  the  judgment  should  be  rendered. 

The  indictment  alleges  the  fact  of  a  judgment  in  favor  of  the  defend- 
ant, which  if  not  conclusive  as  between  the  parties  to  tliis  criminal  pros- 
ecution, is  at  all  events  conclusive  between  the  parties  to  tiie  transac- 
tion. To  hold  that  the  statute  which  punishes  criminally  the  obtaining 
of  propert}'  b}'  false  pretences,  extends  to  the  ease  of  a  payment  made 
by  a  judgment  debtor  in  satisfaction  of  a  judgment,  when  the  evidence 
onl}'  shows  that  the  false  pretences  were  used  to  obtain  a  judgment,  as 
one  step  towards  obtaining  the  mone}',  would  practically  make  all  civil 
actions  for  the  recover}'  of  damages  liable  in  such  cases  to  revision  in 
the  criminal  courts,  and  subject  the  judgment  creditor  to  prosecution 
criminally  for  collecting  a  valid  judgment,  whether  the  same  w.as  paid 
in  money  or  satisfied  by  a  levy  on  property. 

SouLE,  J.  I  am  obliged  to  differ  from  the  majority  of  the  court,  and 
am  authorized  to  state  that  the  Chief  Justice  and  Mr.  Justice  Ames 
concur  with  me.  As  the  case  involves  questions  of  importance  in  the 
administration  of  public  justice,  it  has  seemed  to  us  proper  to  state  our 
views  of  them.  In  doing  this,  it  is  necessary  to  discuss  several  points 
which  are  raised  by  the  exceptions,  but  are  not  treated  of  in  the  opinion 
of  the  court,  because  they  have  l)ecorae  immaterial  t<)  the  decision  which 
has  been  reached  by  the  majority. 

The  indictment  sets  forth  that  the  defendant,  with  intent  to  cheat  .<ind 
defraud,  made  certain  false  representations  and  pretences,  as  to  matters 

48 


754  COMMON' WEALTH  V.   HARKINS.  [cHAP.  XV. 

within  his  knowledge  and  relating  to  existing  facts  as  well  as  to  past 
transactions,  concerning  which  neither  the  city  of  Lynn  nor  its  agent 
hud  the  means  of  knowing  the  truth,  and  that,  by  means  of  these  repre- 
sentations and  pretences,  the  city,  believing  them  to  be  true,  was 
induced  to  and  did  part  with  its  money  to  the  defendant.  It  further 
sets  forth  that  the  defendant  received  the  mone}'  b}'  means  of  the  false 
pretences,  and  with  intent  to  cheat  and  defraud  the  city  of  Lynn,  and 
tliat  the  several  representations  and  pretences  were  not  true.  It  there- 
fore charges  an  offence.  Commonwealth  v.  Hooper,  104  Mass.  549  ; 
Commonwealth  v.  Parmenter,  121  Mass.  354. 

The  additional  allegations  as  to  the  consent  to  the  entry  of  judgment 
and  tlie  satisfaction  of  the  judgment  are  merely  a  narration  of  the 
methods  by  which  the  parties  proceeded  in  paj'ing  and  receiving  the 
mone3',  and  are  wholly  unnecessar}',  but  they  do  not  charge  another 
offence,  nor  make  the  indictment  bad  for  duplicity.  The  obtaining  of 
the  money  by  false  pretences  is  the  gist  of  the  offence,  not  the  obtaining 
of  the  judgment. 

The  fact  that  the  judgment  obtained  by  the  defendant  remains  unre- 
versed constitutes  no  objection  to  the  indictment.  It  is  true  that,  as  a 
matter  of  public  policy,  an  unreversed  judgment  is  conclusive  between 
the  parties  and  their  privies,  in  accordance  with  the  maxim,  Interest 
reipublicm  ut  sit  finis  litium.  And  this  principle  goes  so  far  that  one 
cannot  sustain  an  action  against  another  for  obtaining  a  judgment  against 
him  by  means  of  conspiracy  and  fraud,  if  he  had  an  opportunity  to  be 
heard  at  the  trial  of  the  cause  in  which  the  judgment  was  obtained. 
Castriqne  v.  Behrens,  3  E.  &  E.  709  ;  Huffer  y.  Allen,  L.  R.  2  Ex.  15. 

But  it  is  equally  true  that  a  judgment  is  conclusive  onl}'  between  the 
parties  and  their  privies,  and  that  strangers  are  not  bound  nor  affected 
by  it.  To  the  indictment  the  Commonwealth  is  a  party,  but  was  a 
stranger  to  the  action  between  the  city  of  Lynn  and  the  defendant,  in 
which  the  judgment  was  recovered.  That  judgment  is,  therefore,  no 
evidence  against  the  Commonwealth  that  the  defendant  was  entitled  to 
recover  anything  of  the  city.  It  has  no  bearing  on  the  case  at  bar, 
except  as  being  a  part  of  the  machinery  emploj'ed  in  obtaining  the 
money  wrongfully.  Its  existence  is  no  bar  to  prevent  the  Common- 
wealth from  showing,  in  its  prosecution  of  crime,  that  it  and  the  money 
were  obtained  by  false  pretences.  To  hold  otherwise  would  be  to  pro- 
vide a  shield  for  the  criminal  in  his  own  crime.  There  is  nothing  in 
thi.s  view  of  the  law,  which  conflicts  with  the  decision  in  the  recent  case 
of  Commonwealth  v.  McDuff}',  126  Mass.  467.  It  was  there  held,  that 
one  who  obtains  onl}'  what  is  due  him  b}'  false  pretences  commits  no 
punishable  offence.  It  was  not  held  that  the  Commonwealth  was 
estopped  to  prove  the  truth,  by  a  judgment  to  which  it  was  not  a  party. 
The  general  doctrine,  that  only  parties  and  privies  are  concluded  by  a 
judgment,  is  too  familiar  to  require  the  citation  of  authorities  in  its 
support.  An  application  of  it  peculiarl}'  pertinent  to  the  case  at  bar 
was  made  in  The  Duchess  of  Kingston's  case,  20  Howell's  St  Tr.  355. 


SECT.  III.]  COMMONWEALTH   V.    HARKINS. 


'b:i 


The  indictment  is  not  defective  on  the  ground  of  remoteness  of  the 
false  reiJiest'utatiuus  from  the  obtaining  of  the  money.  Ordinarily  the 
(juestion  of  remoteness  is  one  for  the  jury,  and  can  he  presented  to 
this  court  only  on  a  report  of  the  evidfiice  all<T  a  refuHal  hv  tiic  presid- 
ing judge  to  rule  that  the  evidence  will  not  warrant  a  conviction.  As 
an  objection  to  the  indictment,  it  is  in  substance  that  the  indictment 
shows  that  the  money  was  obtained  on  a  valid  judgment,  and  therefore 
cannot  be  held  to  have  been  obtained  by  the  false  pretences.  Hut  this 
point  is  not  tenable.  The  test  is  the  direct  connection  between  the  pre- 
tence and  the  payment  of  the  money.  There  was  no  i)ur|>ose  in  either 
party  to  the  transaction  that  the  matter  shoidd  go  to  the  extcDt  of 
entering  up  the  judgment,  and  rest  there  ;  the  judgment  was,  in  and  of 
itself,  of  no  importance.  It  was  only  a  means  to  an  end,  and  it  was 
for  the  jury  to  say  whether  the  false  pretences  were  an  inducement  for 
the  payment. 

In  the  case  of  Regina  r.  Gardner,  Dearsly  &  Bell,  40,  and  7  Cox  C. 
C.  136,  cited  by  the  defendant,  it  was  hehl  that  the  false  pretence  wa.s 
exhausted  by  obtaining  a  contract  for  lodging,  and  did  not  extend  to 
the  contract  for  board  also,  made  after  the  defendant  had  been  a  lodger 
with  the  prosecutor  for  more  than  a  week.  In  Kegina  i-.  Hrvan,  2  F. 
&  F.  5G7,  board  and  lodging  had  been  obtained  by  means  of  false  pre- 
tences, and,  sometime  after  the  contract  therefor,  the  prisoner  borrowed 
sixpence  of  the  person  with  whom  he  had  made  the  contract  and  waa 
lodging,  and  it  was  held  that  the  money  was  not  obtained  by  tlie  false 
pretence. 

But  in  Regina  v.  Martin,  L.  R.  1  C.  C.  56,  it  was  held  that  the  ques- 
tion of  remoteness  was  for  the  jur}-,  and  that  a  conviction  was  warranted 
when  the  prisoner  had  ordered  a  van  to  be  made,  under  the  false  pre- 
tence that  he  acted  for  the  Steam  Laundry  Company  of  Astxjii,  which 
he  represented  to  be  composed  of  leading  men  of  Birmingham,  and 
before  it  was  delivered  to  him  countermanded  the  order,  and  afterward 
agreed  to  receive  it  if  certain  alterations  were  made  in  it,  which  were 
made,  and  it  was  subsequently  delivered.  In  that  case  it  is  said  that, 
in  order  to  justif}'  a  conviction,  there  must  be  a  direct  connection  be- 
tween the  pretence  and  the  delivery  of  the  chattel,  and  that  whether 
there  is  such  a  counection  or  not  is  a  question  for  the  jury  ;  and.  fur- 
ther, that  since  the  cases  of  Regina  v.  Abbott,  1  Denison,  27.'5,  and 
Regina  v.  Burgon,  Dearsly  &  Bell,  11,  it  is  impossible  to  contend  seri- 
ously that  the  case  is  not  within  the  statute,  because  the  chattel  is 
obtained  under  a  contract  induced  by  the  false  pretence. 

The  false  representations  and  pretences  set  forth  in  the  indictment 
are  of  such  a  character  as  to  bring  the  transaction  within  the  statute. 
It  is  sometimes  said  that  a  naked  lie  is  not  within  the  statute  ;  and.  as 
applied  to  particular  cases,  this  is  true  ;  as  when  one  falsely  represonU 
to  a  saloon-keeper  that,  a  few  days  Ixjfore,  he  gave  the  keeper  five 
dollars  out  of  which  to  take  twenty  cents  in  payment  for  drinks,  and 


756  COMMONWEALTH   V.    HARKINS.  [CHAP.  XV. 

that  the  keeper  did  not  return  any  change  ;  Commonwealth  v.  Norton, 
1 1  Allen,  266  ;  or  where  one  draws  his  check  on  a  bank  in  which  he 
has  no  money,  and  presents  it  at  the  bank  for  payment.  Common- 
wealth V.  Drew,  19  Pick.  179.  In  those  cases  the  lie  is  told  to  one  who 
has  the  same  means  with  the  liar  of  knowing  what  the  fact  is.  In  the 
case  last  cited  it  was  said  that  passing  a  check  drawn  on  a  banker  with 
whom  the  drawer  has  no  account,  and  which  he  knew  would  not  be 
paid,  would  be  within  the  statute ;  and  the  English  decisions  are  so. 
The  difference  between  the  two  is  merely  that  in  one  case  the  lie  or  false 
pretence  is  made  to  one  who  is  in  a  situation  to  know  the  facts,  and  in 
the  other  to  one  who  is  not  in  such  situation.  The  true  rule  seems  to 
be,  that  a  case  is  within  the  statute  if  the  alleged  false  pretence  is  an 
intentionally  false  representation  as  to  an  existing  Tact  or  past  trans- 
action, made  to  one  who  has  not  the  means  of  knowing  the  truth  in  the 
premises,  for  the  purpose  of  inducing  him  thereby  to  part  with  hia 
propert}'. 

This  case  comes  up  on  exceptions  to  a  refusal  to  quash  the  indictment, 
and  it  is  argued  that  there  was  no  such  relation  of  trust  and  confidence 
between  the  defendant  and  the  citj'  of  Lynn  as  would  justify  a  belief  in 
the  representations  made,  and  lay  a  foundation  for  an  indictment  under 
the  statute.  But,  as  has  alread}'  been  said,  there  are  sufficient  allega- 
tions to  constitute  a  good  indictment,  and  the  question  whether  the\' 
were  proved  or  not  is  one  of  evidence,  and  not  of  pleading.  Moreover, 
it  is  not  true,  as  matter  of  law,  that  one  who  is  negotiating  a  settlement 
of  an  alleged  claim  for  damages  cannot  bring  himself  within  the  statute 
by  making  false  representations  and  obtaining  money  thereby.  In 
Regina  v.  Copeland,  Car.  &  M.  516,  the  prisoner,  a  married  man,  who 
had  obtained  a  promise  of  marriage  from  a  single  woman  which  she 
refused  to  fulfil,  threatened  her  with  an  action  at  law  for  breach  of 
her  promise,  and  added  that  he  could  thereby  take  half  her  fortune 
from  her,  and  she,  believing  the  statement  and  threat,  paid  him  one 
hundred  pounds  sterling.  The  prisoner  was  convicted,  and  the  convic- 
tion was  sustained  by  Lord  Denman  and  Mr.  Justice  Maule. 

The  question  whether  the  false  pretences  were  believed  and  induced 
the  payment  is  for  the  jury.  To  quash  the  indictment  on  the  ground 
that  the  circumstances  of  the  transaction  would  not  justify  a  conviction, 
would  be  to  quash  it  for  matters  dehors  the  record. 

That  the  wrong  is  a  private  one  is  no  objection  to  the  prosecution, 
although  it  has  been  said  in  many  cases  that  the  statute  is  not  intended 
for  the  punishment  of  every  private  wrong.  In  all  the  cases  above 
cited  in  which  a  conviction  was  sustained  the  wrong  was  a  private  one, 
in  the  same  sense  as  in  the  case  at  bar ;  it  is  a  public  wrong  in  this,  as 
in  those  cases,  in  that  it  is  within  the  statute  which  provides  for  pun- 
ishment of  the  wrongdoer.  The  purpose  of  the  statute  was  to  extend 
the  punishment  to  cases  which  were  not  reached  by  the  common  law, 
and  its  language  is  broad  and  comprehensive.     Its  operation  ought  not 


SBCT.  III.]  COMMONWEALTH   V.    HARKINS.  757 

to  be  limited  by  phrases  of  iudeOuite  meaning,  which  fail  to  state  an/ 
principle  of  construction.  JixcejAions  siuitaiueJ. 

Note  on  Intent  to  Defuaud.  —  As  to  the  re<|ui?ite  intent  to  dcfraii'l  nco  Hex  v. 
Wakeling,  Uuss.  &.  My.  504,  sitpra ;  Hex  v.  Niiylor,  L.  U.  1  ('.  ('.  \i.  4,  10  Cox  C.  V. 
149 ;  Com.  v.  Schwartz  (Ky),  18  S.  W.  358.  S«c  aluo  I'oany  v.  llan»<)n,  16  Cox  C.  C. 
173.  This  was  a  pro.seoixlion  under  5  Geo.  IV.  ch.  8,3,  m.  4,  for  "  jiretemling  or  pro- 
fessing to  tell  fortunes  or  using  any  subtle  craft  to  decfive  and  iinj><*»i;  on  "  the  pnMO- 
cutor.  The  defence  was  that  no  evidence  had  l>een  pre.sented  of  nn  intent  to  doociro. 
The  evidence  showed  that  defendant  offered  to  tell  tlie  pro»ccut<jr's  fortune  l>y  ineana 
of  astrology.  Denman,  J.,  .said  :  "  This  is  an  instance  to  which  the  d<j<-trine  Ttt  ijiia 
loquitur  applies.  It  is  nonsense  to  snppo.se  that  in  these  days  of  advanced  LuowltnlKe 
the  appellant  really  did  believe  he  had  the  pi>wer  to  predict  a  man's  future  by  know- 
ing at  what  hour  he  was  born,  and  the  position  of  the  stars  at  the  particular  inomeut 
of  his  birth.  No  person  who  was  not  a  lunatic  could  believe  he  ponsessed  such  jH>wpr. 
There  was  therefore  no  need  on  the  part  of  the  prosecution  to  negative  his  belief  iu 
such  power  or  capacity.  The  magistrate  rightly  drew  an  inference  that  the  appcILiut 
had  an  intent  to  deceive  and  impose  on  the  prosecutor."  —  Ed. 


758  BEGINA  V.  WADE,  [CHAP.  XVL 


CHAPTER  XVL 
RECEIVING  STOLEN  PROPERTY. 


SECTION  I. 

The  Receiving. 

REX  V.   RICHARDSON. 
Old  Bailey.     1834. 

[Reported  6  Carrington  ^  Payne,  335.] 

Four  of  the  prisoners  were  indicted  for  sacrilegiously  breaking  and 
entering  a  chapel,  called  St.  Philip's  Chapel,  in  the  parish  of  Clerken- 
well,  and  stealing  therein  certain  things.  The  other  prisoner  was 
charged  as  receiver.^ 

Taunton,  J.  (in  summing  up  with  respect  to  the  receiver) ,  said : 
Whether  he  made  any  bargain  or  not  is  a  matter  of  no  consequence. 
If  he  received  the  property  for  the  mere  purpose  of  concealment  with- 
out deriving  any  profit  at  all  he  is  just  as  much  a  receiver  as  if  he  had 
purchased  it.  It  is  a  receiving  within  the  meaning  of  the  statute. 
Verdict,  three  of  the  prisoners  guilty  and  two  of  them  not  guilty.^ 


REGINA  V.  WADE. 
Liverpool  Assizes.     1844. 

[Reported  1  Carrington  &  Kirwan,  739.] 

The  prisoners  Wade  and  Kenyon  were  Indicted  for  having  broken 
and  entered  the  house  of  Thomas  Worsley  at  Warrington,  and  having 
stolen  therefrom  one  watch,  two  handkerchiefs,  and  other  articles  his 
property,  the  prisoner  Leigh  being  indicted  for  receiving  the  watch  and 
the  handkerchiefs,  knowing  them  to  have  been  stolen. 

The  prisoners  Wade  and  Kenyon  pleaded  guilty.  The  prisoner  Leigh 
pleaded  not  guilty  and  was  tried. 

1  Part  of  the  case  not  involving  any  question  of  receiving  is  omitted. 
'  Ace.  Com,  i;.  Bean,  117  Mass.  141.  —  Ed. 


SECT,  l]  REGINA    V.    MILl.KU.  759 

It  was  proved  by  the  servant  of  a  pawnhroker  that  the  wife  of  the 
prisoner  Leigli  had  pledgt-d  Ihc  stoh-n  walch  on  a  day  gubsL-tpuMit  to 
the  robbery,  and  Jarnes  .lones,  a  constable  of  Warrington,  hIho  prove<l 
that  he  had  seen  all  the  three  prisomrs  together,  tlioy  Iwing  in  cuht4Kly 
together  at  Manchester,  when  Leigiiaaid  that  he  had  left  Kenyon'b  huuue 
with  Kenyon  before  the  robl»ery,  thai  he  had  uflerwurdu  gone  to  Dun- 
ham (about  eight  miles  from  Mamliesler)  and  returned.  Leigh  wu« 
then  discharged.  Hut  the  witness  subsequently  went  to  Manchcsltr 
again,  and  caused  him  to  be  again  apprehended  ;  and  Leigh's  wife  then, 
in  the  presence  of  Leigh,  t<^>ld  this  witness  that  she  had  taken  the  watch 
and  pawned  it  for  10s.  She  added  that  Leigh  had  alwo  told  ln-r  to  lake 
two  handkerchiefs,  and  that,  as  she  was  about  to  go  with  lliem,  a  |)olice- 
man  came,  and  she  left  them  in  a  cellar  next  door  to  her  husband's 
house.  Upon  that  information,  the  witness  wi-nt  to  the  cellar  and 
found  the  handkerchiefs.  Afterwards,  when  Leigh  was  in  cusU^xly  in 
the  lockups  Avith  Wade,  Leigh  told  the  same  witness  that  while  he 
(Leigh)  was  before  with  Wade  in  the  same  place,  Wade  had  told  him 
(Leigh)  that  he  had  "  planted"  the  watch  ai»d  handkerchiefs  under  a 
flag  in  the  soot-cellar  in  his  (Leigh's)  house  ;  and  that  when  he  (Leigh) 
was  discharged,  as  before  mentioned,  he  had  gone  and  taken  the  things, 
and  had  desired  his  wife  to  pledge  the  watch  for  as  much  as  she  could 
get  upon  it. 

The  watch  and  handkerchiefs  were  identified  as  the  property  of  the 
prosecutor. 

Pollock,  C.  B.  I  doubt  whether,  when  the  possession  has  \>een 
transferred  by  an  act  of  larceny,  the  possession  can  be  considered  to 
remain  in  the  owner.  Were  it  so,  then  every  receiver  of  stolen  goo<ls, 
knowing  them  to  be  stolen,  would  be  a  thief  ;  and  so  on,  in  series  from 
one  to  another,  all  would  be  thieves.  If  this  was  an  act  done  by  the 
prisoner  (Leigh)  in  opposition  to  Wade,  or  against  his  will,  then  it 
might  be  a  question  whether  it  were  a  receiving.  Hut  if  Leigh  took  tlie 
articles  in  consequence  of  information  given  by  Wade,  Waile  telling 
Leigh  in  order  that  the  latter  might  use  the  information  by  taking  the 
goods,  then  it  is  a  receiving.  Verdict,  guilty. 


REGINA  V.   MILLER. 
Crown  Case  Reserved,  Ireland.     1854. 

[Reported  6  Cox  C.  C.  353.] 

Lefrot,  C.  J.,^  now  delivered  the  judgment  of  the  court  In  this 
case  two  questions  have  been  reserved  for  our  consideration.  F'in»t, 
whether  there  was  sufficient  evidence  that  Mary  Millor  hft<l  reccivt-d 

*  The  opinion  only  is  given  ;  it  snflBciently  ttaiea  the  ca*e. 


760  REGINA   V.   SMITH.  [CHAP.  XVL 

the  stolen  property ;  and,  secondly,  whether  certain  evidence  regard- 
ing the  former  dealings  between  the  two  prisoners,  to  the  admissi- 
bility of  which  no  objection  had  been  originally  offered,  had  been 
left  to  the  jury  with  the  proper  view.  The  evidence  in  support  of 
the  charge  of  receiving  was  this :  the  servant-maid  of  Mary  Miller 
was  produced  as  a  witness,  and  stated  that  her  mistress  kept  a  public- 
house  in  the  town  of  Fermoy.  That  Ellen  Connors,  the  other  prisoner, 
entered  the  shop,  and  went  behind  the  counter  where  she  was ;  that 
her  mistress  called  her  into  the  shop  ;  that  Connors  had  then  the  pieces 
of  cotton  in  her  hand,  which  Miller  desired  witness  to  take  to  the 
pawn  office  and  pawn,  and  that  she  did  so  accordingly ;  that  she 
brought  back  the  money  which  she  then  received,  and  gave  it,  in  the 
presence  of  her  mistress,  to  Connors,  who  was  then  in  the  shop,  but 
that  her  mistress  had  never,  with  her  own  hand,  received  any  part  of 
the  money  from  her.  The  question  was,  whether  this  was  a  receiving 
of  stolen  goods  by  the  mistress  ?  It  appears  to  us  that  it  was  virtually 
a  receiving  by  Mary  Miller,  inasmuch  as  her  servant,  by  her  order  and 
direction,  received  the  goods  from  the  thief,  took  them  to  the  pawn 
office,  and  brought  back  the  money  to  the  thief.  This,  in  our  opinion, 
was  virtually  as  much  a  receiving  of  stolen  goods  as  if  her  own  hand, 
and  not  that  of  her  servant,  had  received  them.  No  question  can  be 
raised  in  this  case  involving  the  necessity  of  those  subtle  distinctions 
taken  on  former  occasions,  with  respect  to  the  continuance  of  the 
possession  of  the  goods  in  the  thief,  for  the  goods  here  were  clearly 
transferred  to  hands  which  were  virtually  those  of  Mary  Miller  her- 
self. No  question  has  been  reserved  relative  to  the  sufficiency  of  the 
evidence  of  guilty  knowledge.  We  are  of  opinion  that  the  evidence 
was  left  to  the  jury  by  the  assistant  barrister  in  the  way  in  which  it 
ought  to  have  been,  and  therefore  that  his  decision  on  both  points 
ought  to  be  affirmed.'' 


REGINA   V.   SMITH. 
Crown  Case  Reserved.     1855. 

[Reported  Dears/y  C.  C  494.] 

The  following  case  was  reserved  for  the  opinion  of  the  Court  of 
Criminal  Appeal  by  Mr.  Edwin  James,  Q.  C,  Recorder  of  Brighton. 

At  the  Quarter  Sessions  of  the  Peace  for  the  borough  of  Brighton, 
holden  at  the  Town  Hall  in  the  said  borough,  before  the  Recorder  of 
the  borough,  on  the  8th  day  of  May,  1855,  the  prisoner,  Thomas 
Smith,  was  indicted  for  feloniously  receiving  a  stolen  watch,  the  prop- 
erty of  John  Nelson,  knowing  the  same  to  have  been  stolen.     It  was 

-  Ace.  Reg.  V.  Rogers,  37  L.  J.  M.  C.  83  —  Ed. 


SECT.  L]  BEGINA   V.    SMITH.  761 

proved  that  John  Nelson,  the  prosecutor,  between  eleven  and  twelve 
o'clock  ou  the  night  of  the  12th  of  A|)ril  in  this  year,  was  in  a  puhlio 
hoiise  called  the  "■  Globe  "  in  Kdward  Street  in  the  said  lH)rough  ;  he  was 
in  company  with  a  prostitute  named  Cliarlotte  Duncan,  who  hxjg.'d  in 
a  room  of  a  house  No.  17  Tiiomas  Street,  Hrighton,  which  l>elonged 
to  the  prisoner,  of  whom  she  rented  tlie  room. 

The  prisoner  and  live  or  six  other  persons  were  present  in  the  apart- 
ment in  the  Globe  Inn  when  the  prosecutor  and  Charlotte  Duncan 
entered  ;  while  the  prosecutor  was  drinking  in  the  "  (JIoIh?,"  his  watc-h, 
being  the  watch  named  in  the  indictment,  was  taken  from  his  person 
by  some  one  who  forced  open  the  ring  which  secured  the  wateh  to  a 
guard.  'J'he  prosecutor  heard  the  click  of  the  ring  and  in)mediately 
missed  his  watch,  and  taxed  the  prisoner  as  the  thief.  A  policeman 
was  sent  for  and  a  partial  search  made,  Init  the  wat<;h  was  not  found. 
The  prisoner  was  present  all  that  time,  aiid  also  a  man  named  Hollands 
was  present  all  the  time.  Soon  after  the  loss  of  the  watch  the  prose- 
cutor and  the  girl  Charlotte  Duncan  went  together  to  Charlotte  Dun- 
can's room  in  Thomas  Street.  After  they  had  been  there  together  little 
more  than  an  hour  the  prisoner  came  into  the  room  where  tliey  were, 
and  said  to  the  prosecutor,  "  AVas  not  you  in  the  '  Globe,'  antl  did  not 
you  lose  your  watch?"  The  prosecutor  said,  "Yes."  The  prisoner 
then  said,  "What  would  you  give  to  have  your  watch  back  again?" 
Prosecutor  said,  "  I'd  give  a  sovereign."  Prisoner  then  said,  "  Well, 
then,  let  the  young  woman  come  along  with  me,  and  I  will  get  you 
the  watch  back  again."  Charlotte  Duncan  and  the  prisoner  then  went 
together  to  a  house  close  by,  in  which  the  prisoner  himself  lived. 
They  went  together  into  a  room  in  which  Hollands  was.  This  was 
nearly  one  o'clock.  There  was  a  table  in  the  room  ;  on  first  going  in 
Charlotte  Duncan  saw  there  was  no  watch  on  the  table,  but  a  few 
minutes  afterwards  she  saw  the  watch  there.  The  prisoner  was  close 
to  the  table.  She  did  not  see  it  placed  there,  but  she  stated  it  must 
have  been  placed  there  by  Hollands,  as,  if  the  prisoner  to  whom  she 
was  talking  had  placed  it  there,  she  must  have  observed  it.  The 
prisoner  told  Charlotte  Duncan  to  take  the  watch  and  go  and  get  the 
sovereign.  She  took  it  to  the  room  in  17  Thomas  Street,  to  the  prose- 
cutor, and  in  a  few  minutes  the  prisoner  and  Hollands  came  to  that 
room.  Hollands  asked  for  the  reward.  The  prosecutor  gave  HoUamls 
half-a-crown,  and  said  he  believed  the  watch  was  stolen,  and  told  him 
to  be  off.  Hollands  and  the  prisoner  then  left.  The  prisoner  di<l  not 
then  say  anything,  nor  did  the  witnesses  see  him  receive  any  money. 
Hollands  absconded  before  the  trial.  The  recorder  told  the  jury  that, 
if  they  believed  that  when  the  prisoner  went  into  the  room  1 7  Thomas 
Street  and  spoke  to  the  prosecutor  about  the  return  of  the  watch,  and 
took  the  girl  Duncan  with  him  to  the  house  where  the  watch  was  given 
up,  the  prisoner  knew  that  the  watch  was  stolen  ;  and  if  the  jury 
believed  that  the  watch  was  then  in  the  cu8to<ly  of  a  person  with  tlie 
cognizance  of  the  prisoner,  that  person  being  <»ue  over  whom  the  pris- 


762  REGINA  V.   SMITH.  [CHAP.  XVL 

oner  bad  absolute  control,  so  that  the  watch  would  be  forthcoming  if 
the  prisoner  ordered  it,  there  was  ample  evidence  to  justify  them  in 
convicting  the  prisoner  for  feloniously  receiving  the  watch.  The  jury 
found  the  prisoner  guilty,  and,  in  answer  to  a  question  from  the 
recorder,  stated  that  they  believed  that,  though  the  watch  was  in 
Hollands'  hands  or  pocket,  it  was  in  the  prisoner's  absolute  control. 

Sentence  was  passed  on  the  prisoner,  but  was  respited  until  the 
opinion  of  the  court  could  be  taken. 

The  question  for  the  opinion  of  the  court  is,  if  the  conviction  of  the 
prisoner  is  proper. 

This  case  was  argued  on  the  2d  day  of  June,  1855,  before  Lord 
Campbell,  C.  J.,  Alderson,  B.,  Erie,  J.,  Piatt,  B.,  and  Crowder,  J. 

No  counsel  appeared  for  the  Crown. 

Creasy,  for  the  prisoner.^ 

Lord  Campbell,  C.  J.  I  think  that  the  conviction  was  right.  In 
the  first  place  the  direction  of  the  learned  recorder  was  unexception- 
able. According  to  the  decided  cases  as  well  as  to  the  dicta  of  learned 
judges,  manual  possession  is  unnecessary.  If  we  were  to  hold  a  con- 
trary doctrine,  many  receivers  must  escape  with  impunity.  Then  it 
has  been  held  in  decided  cases,  including  Regina  v.  Wiley,  4  Cox  C.  C. 
412,  that  there  may  be  a  joint  possession  in  the  receiver  and  the  thief ; 
that  is  the  ratio  decidendi  on  which  the  judgment  in  that  case  pro- 
ceeds. Then,  was  not  there  ample  evidence  to  justify  the  jury  in 
coming  to  the  conclusion  at  which  they  arrived?  I  think  there  was. 
They  might,  it  is  true,  have  drawn  a  different  conclusion,  and  have 
found  that  Smith  was  the  thief ;  and  if  they  had  drawn  that  conclu- 
sion, he  would  have  been  entitled  to  an  acquittal.  Another  inference 
which  they  might  have  drawn,  and  which  would  also  have  resulted  in 
a  verdict  of  not  guilty,  was,  that  Hollands  being  the  thief,  the  watch 
remained  in  his  exclusive  possession,  and  that  the  prisoner  acted  as 
his  agent  in  restoring  the  watch  to  the  prosecutor ;  but  the  jury  have 
come  to  a  different  conclusion,  and  I  think  they  were  justified  in  so 
doing.  We  have  instances  in  real  life,  and  we  find  it  represented  in 
novels  and  dramas  drawn  from  real  life,  that  persons  are  employed  to 
commit  larcenies  and  so  deal  with  the  stolen  goods  that  they  may  be 
under  the  control  of  the  employer.  In  this  case  Hollands  may  have 
been  so  employed  by  the  prisoner,  and  the  watch  may  have  been  under 
the  prisoner's  control,  and  if  so,  there  was  evidence  of  a  possession 
both  by  Hollands  and  the  prisoner. 

Alderson,  B.  There  was  abundant  evidence  from  which  the  jury 
might  come  to  the  conclusion  at  which  they  arrived,  although  there  was 
evidence  the  other  way. 

Erle,  J.  The  doubt  in  these  cases  has  arisen  as  to  the  meaning  of 
the  word  "  receive,"  which  has  been  supposed  to  mean  manual  posses- 
sion by  the  receiver.     In  Regina  v.  Wiley,  Patteson,  J.,  says,  that  a 

1  The  argnraent  is  omitted. 


SECT.  I.]  REGINA   t'.    WOODWARD. 


rG3 


manual  possession,  or  even  a  touch,  is  not  cesontiul  to  a  receiving. 
b.it  that  there  must  he  a  control  over  the  gooiis  by  the  receiver.  Ik-rc' 
the  question  of  control  was  left  to  the  jury,  and  they  exprCHhly  found 
that  though  the  watch  was  in  lIolhuidH'  hand  or  i.ockcl,  it  wu.s  iu  ilie 
prisoner's  absolute  control. 

Platt,  B.  Tlu-re  was  some  evidence  tliat  tiie  prisoni-r  nii^'ht  have 
been  the  thief,  and  the  prosecutor  charged  him  with  being  the  thief ; 
but  a  search  was  made  and  the  watch  was  not  found,  and  it  was  prove*! 
that  Hollands  absconded  before  the  trial  ;  from  that  and  the  oilier  faclh 
of  the  case,  the  jury  might  well  (ind  that  Hollands  wa.s  the  ihief  and 
the  prisoner  the  receiver. 

Ckow'dkk,  J.  I  also  think  that  both  the  direction  and  the  convic- 
tion were  right.  There  was  sullicient  evidence  that  Hollands  was  the 
thief.  The  question  is  then  put  to  the  jury.  Was  the  waNh  under  the 
control  of  the  prisoner?  And  they  say  it  was.  That  hnding  \»  sulli- 
cient to  support  their  verdict,  and  the  conviction  was  right. 

Conviction  affirmed. 


REGINA  V.   WOODWARD. 
Crown  Cask  Rkservki>.     1862. 

[Reported  9  Cox  C.  C.  95.] 

Case  reserved  for  the  opinion  of  the  Court  of  Criminal  Appeal.  At 
the  Quarter  Sessions  of  the  peace  for  the  county  of  Wilts.  Iiel<l  at  Marl- 
borough, on  the  16th  day  of  October,  1861,  before  me,  Sir  John  Wither 
Awdry,  Bart,  and  others  my  fellows,  Benjamin  Woodward,  of  Trow- 
bridge, in  the  county  of  Wilts,  dealer,  was  found  guilty  of  receiving 
stolen  goods,  knowing  them  to  have  been  stolen,  and  was  thereu|K)n 
sentenced  to  nine  calendar  months'  imprisonment  with  hard  lal)or,  and 
the  prisoner  now  is  undergoing  his  sentence. 

The  actual  delivery  of  the  stolen  property  was  made  by  the  principal 
felon  to  the  prisoner's  wife,  in  the  absence  of  the  prisoner,  and  she 
then  paid  Gd.  on  account,  but  the  amount  to  be  paid  was  not  then  fixed. 
Afterwards  the  prisoner  and  the  principal  met  and  agreed  on  the  price, 
and  the  prisoner  paid  the  balance. 

Guilty  knowledge  was  inferred  from  the  general  circumstances  of  the 
case. 

It  was  objected  that  the  guilty  knowledge  must  exist  at  the  time  of 
receiving,  and  that  when  the  wile  received  the  goods  the  guilty  knowl- 
edge could  not  have  come  to  the  prisoner. 

The  court  overruled  this  objection,  and  directed  the  jury  th.it  until 
the  subsequent  meeting,  when  the  act  of  the  wife  was  adofited  by  the 
prisoner  and  the  price  agreed  upon,  the  receipt  was  not  so  complete  as 
to  exclude  the  effect  of  the  guilty  knowledge. 


764  REGINA   V.   WOODWARD.  [CHAP.  XVL 

If  the  court  shall  be  of  opinion  that  the  circumstances  before  set  forth 
are  sufficient  to  support  a  conviction  against  the  prisoner  for  the  felo- 
nious receipt,  the  conviction  is  to  stand  confirmed ;  but  if  the  court 
shall  be  of  a  coutrar}-  opinion,  then  the  conviction  is  to  be  quashed. 

J.  W.  AWDRT. 

G.  Broderick^  for  the  prisoner.  This  conviction,  it  is  contended, 
cannot  be  sustained.  At  the  trial  it  was  not  said  on  the  part  of  the 
prosecution  that  the  wife  of  the  prisoner  was  her  husband's  agent  in 
receiving  the  property",  but  that  he  subsequently  adopted  her  act  of  re- 
ceiving by  paying  the  balance  of  the  price  agreed  upon.  But  there  was 
no  evidence  of  any  guilty  receipt  by  the  wife,  or  of  an}'  subsequent  act 
of  receiving  by  the  prisoner.  The  guilty  knowledge  and  act  of  receiv- 
ing must  be  simultaneous.  In  Reg.  v.  Dring  and  Wife,  1  Dears.  & 
Bell,  329  ;  7  Cox  Crira.  Cas.  382,  where  a  husband  and  wife  were  jointly 
indicted  for  receiving  stolen  goods,  and  the  jury  found  both  guilty,  stat- 
ing that  the  wife  received  them  without  the  control  or  knowledge  of  and 
apart  from  her  husband,  and  that  he  afterwards  adopted  her  receipt,  it 
was  held  that  the  conviction  could  not  be  sustained  as  against  the  hus- 
band;  and  in  his  judgment,  Cockburn,  C.  J.,  observed  that,  "  If  we 
are  to  take  it  that  the  jury  meant  to  say,  '  We  find  the  prisoner  guilty 
if  the  coui't  should  be  of  opinion  that  upon  the  facts  we  are  right,'  then 
we  ought  to  be  able  to  see  that  the  prisoner  took  some  active  part  in  the 
matter,  that  the  wife  first  received  the  goods  and  then  the  husband  from 
her,  both  with  a  guilty  knowledge."  [Blackburn,  J.  The  verdict  in 
this  case  is,  that  he  did  receive  them  :  there  is  no  question  raised  as  to 
whether  the  verdict  was  justified.  Erle,  C.  J.  Receiving  is  a  very 
complex  term.  There  is  the  case  where  two  persons  stole  fowls,  and 
took  them  for  sale  in  a  sack  to  another  person,  who  knew  them  to  have 
been  stolen.  The  sack  was  put  in  a  stable  and  the  door  shut,  while  the 
three  stood  aside  haggling  about  what  was  to  be  paid  for  them.  There 
the  judges  differed  as  to  whether  there  was  a  receiving  by  the  third  per- 
son in  whose  stable  the  sack  was  put.]  That  was  the  case  of  Reg.  v. 
Wiley,  4  Cox  Crim.  Cas.  412.  The  actual  receipt  of  the  goods  was  by 
the  wife,  and  it  is  consistent  with  the  evidence  that  the  goods  may 
never  have  come  into  the  prisoner's  possession  at  all.  (The  case  of 
Reg.  V.  Button,  11  Q.  B.,  3  Cox  Crim.  Cas.  229,  were  also  cited.) 

Erle,  C.  J.  The  argument  of  the  learned  counsel  for  the  prisoner 
has  failed  to  convince  me  that  the  conviction  was  wrong.  It  appeal's 
that  the  thief  brought  to  the  premises  of  the  prisoner  the  stolen  goods 
and  left  them,  and  that  sixpence  was  paid  on  account  of  them  by 
the  prisoner's  wife,  but  there  was  nothing  in  the  nature  of  a  com- 
plete receipt  of  the  goods  until  the  thief  found  the  husband  and  agreed 
with  him  as  to  the  amount,  and  was  paid  the  balance.  The  receipt  was 
complete  from  the  time  when  the  thief  and  the  husband  agreed ;  till 
then  the  thief  could  have  got  the  goods  back  again  on  payment  of 
the  sixpence.  I  am  of  opinion,  therefore,  that  the  conviction  should 
be  affirmed. 


SECT.  11.]  KEGINA   r.   DOLAN.  765 

Blackbdkn,  J.  The  priiuipal  felon  k-fl  the  stolon  proi>erty  wiUi  the 
wife  as  the  hubhunil's  servaiil,  \nil  the  cuuit  below,  a-s  I  undemtaml  the 
case,  doubted  whether  tlje  husband  could  be  found  guillj-  of  feluni(.u»ly 
receiving,  as  he  was  absent  at  the  time  when  the  gcxxls  wen-  delivered 
to  the  wife,  and  could  not  then  know  that  they  were  sUjlen.  It  is  found 
that,  as  soon  as  the  husband  heard  of  it,  he  adcjpted  and  ratified  what 
had  been  done,  and  that  as  so<jn  as  he  adopteil  it  he  ha^l  a  guilty 
knowledge ;  he  therefore  at  that  time  received  the  goods  knowing  them 
to  have  been  stolen. 

Keating,  J.  I  am  of  the  same  opinion.  Tiie  case  finds  that  the 
agreement  as  to  the  price  was  not  C(;inpletc  till  the  thief  and  the  hus- 
band agreed.  I  think  therefore  that  the  receipt  was  not  complete  till 
then,  and  that  the  conviction  was  right.  If  we  were  to  holil  that  the 
conviction  was  not  right,  the  consequences  would  be  very  serious. 

Wilde,  B.  I  read  the  case  as  showing  that  the  wife  received  the 
goods  on  the  part  of  the  prisoner  her  husband,  and  that  act  of  her  was 
capable  of  being  ratified  on  the  part  of  the  [)risoner.  If  so,  that  makes 
the  first  act  of  receiving  by  the  wife  his  act.  In  the  case  of  Keg.  r. 
Dring  and  Wife,  the  only  statement  was  ''  that  the  husband  a<io|jted 
his  wife's  receipt,"  and  the  court  thought  the  word  ''  adopted  "  capable 
of  meaning  that  the  husband  passively  consented  Ui  what  his  wife  haii 
done,  and  on  that  ground  quashed  the  conviction.  But  here  the  prisoner 
adopted  his  wife's  receipt  by  settling  aud  paying  the  amount  agreed  on 
for  the  stolen  goods. 

Mellor,  J.,  coucurred.  Conviction  affirmed. 


SECTION   II. 
Stolen  Property. 

REGINA  V.   DOLAN. 
Crown  Case  Reserved.     1855. 

[Reported  6  Cox  C  C.  449 ;  Deardy  C.  C.  436.] 

The  following  case  was  stated  by  M.  D.  Hill,  Escj.,  Q.  C,  Recorder 
of  Birmingham:  — 

At  the  Sessions  held  in  Birniin<;lmm,  on  the  r)th  day  of  .lanuary, 
1855,  William  Rogers  was  indicted  for  stealing,  ami  Tliomas  Dolan 
for  receiving,  certain  braes  castings,  the  goods  of  John  Turner. 
Rogers  pleaded  guilty,  and  Dolan  was  found  guilty. 

It  was  proved  that  the  goods  were  found  in  the  |)ookets  of  the  pris- 
oner Rogers  by  Turner,  who  then  sent  for  a  |K>liceman,  who  t*K»k  tlie 
goods  and   wrapped  them  in  a  handkerchief,  Turner,    the    prisoner 


766  KEGINA   V.   DOLAN.  [CHAP.  XVL 

Rogers,  and  the  policeman  going  towards  Dolan's  shop.  When  they 
came  near  it  the  policeman  gave  the  prisoner  Rogers  the  goods,  and 
the  latter  was  then  sent  by  Turner  to  sell  them  where  he  had  sold 
others ;  and  Rogers  then  went  into  Dolan's  shop  and  sold  them  and 
gave  the  money  to  John  Turner  as  the  proceeds  of  the  sale.  Upon 
these  facts  it  was  contended  on  the  part  of  Dolau  that  Turner  had 
resumed  the  possession  of  the  goods,  and  that  Rogers  sold  them  to 
Dolan  as  the  agent  of  Turner,  and  that  consequently  at  the  time  they 
were  received  by  Dolau,  they  were  not  stolen  goods  within  the  mean- 
ing of  the  statute. 

1  told  the  jury,  upon  the  authority  of  the  case  of  Regina  v.  Lyons 
and  another,  C.  &  M.  217,  cited  by  the  counsel  for  the  prosecution, 
that  the  prisoner  was  liable  to  be  convicted  of  receiving,  and  the  jury 
found  him  guilty. 

Upon  this  finding  I  request  the  opinion  of  the  Court  of  Appeal  in 
Criminal  Cases  on  the  validity  of  Dolan's  conviction. 

Dolau  has  been  sent  back  to  prison,  and  I  respited  judgment  on  the 
conviction  against  him  until  the  judgment  of  the  court  above  shall  have 
been  given. 

O'Brien,  for  the  prisoner.  This  conviction  cannot  be  sustained. 
The  objection  is,  that  when  the  goods  reached  the  hands  of  Dolan 
they  were  not  stolen  goods.  Thsy  had  been  restored  to  the  posses- 
sion of  the  owner,  and  the  sale  to  the  prisoner  was  with  the  owner's 
authority. 

Lord  Campbell,  C.  J.  There  seems  to  be  great  weight  in  that 
objection  but  for  the  authority  of  the  case  cited.  It  can  hardly  be 
supposed  that  if  goods  were  stolen  seven  years  ago,  and  had  been  in 
the  possession  of  the  owner  again  for  a  considerable  period,  there  could 
be  a  felonious  receipt  of  them  without  a  fresh  stealing. 

O'Brien.  That  was  the  view  taken  by  the  learned  recorder ;  and 
R.  V.  Lyons,  C.  «&;  M.  217,  which  was  cited  for  the  prosecution,  does 
not  appear  to  have  been  a  case  much  considered.  Coleridge,  J.,  in 
that  case,  said,  that  for  the  purposes  of  the  day,  he  should  consider 
the  evidence  as  sufficient  in  point  of  law  to  sustain  the  indictment,  but 
would  take  a  note  of  the  objection. 

Coleridge,  J.     I  certainly  do  not  think  so  to-day. 

O'Brien.  There  is  also  a  slight  circumstance  of  distinction  between 
that  case  and  the  present.  It  does  not  appear  in  that  case  that  the 
stolen  property  was  ever  actually  restored  to  the  hands  of  the  owner, 
nor  that  he  expressly  directed  the  thief  to  take  it  to  the  prisoner. 
(He  was  stopped.) 

Beasley,  for  the  prosecution.  R.  v.  Lyons  is  expressly  in  point,  and 
the  learned  judge  who  decided  it  does  appear  to  have  had  his  attention 
recalled  to  the  point  after  the  conviction,  and  still,  upon  deliberation, 
to  have  thought  there  was  nothing  in  the  objection.  The  facts  are  thus 
stated  in  the  marginal  note :  "  A  lad  stole  a  brass  weight  from  his 
master,  and  after  it  had  been  taken  from  him  in  his  master's  presence 


SECT.  II.]  REGINA   V.    DOLAN.  707 

it  was  restored  to  him  again  with  hi.s  master's  consent  in  order  that  he 
might  sell  it  to  a  man  to  whom  he  had  hceu  in  the  habit  of  M-iling  biiu- 
ilar  articles  which  he  had  stolen  before.  The  lad  did  sell  it  to  tlie 
man  ;  and  the  man  being  indicted  for  receiving  it  of  an  evil-dispoMt-d 
person,  well  knowing  it  to  have  been  stolen,  was  convicted  ami  H»-n- 
tenced  to  be  transported  seven  years."  'I'iie  report  achis  that  afu-r 
the  sentence,  "  the  matter  was  subsecpiontly  called  to  his  KonUhip'a 
attention  by  the  prisoner's  connsel,  yet  no  alteration  was  matle  iu  the 
judgment  of  the  court ;  from  which  it  is  to  be  inferred  that,  u|>on  con- 
sideration, his  Lordship  did  not  think  that  in  point  of  law  the  objection 
ought  to  prevail,"  The  present  is,  however,  a  stronger  case  than 
that ;  because  here  in  truth  the  master  diil  not  recover  possession  of 
the  stolen  goods.  They  were  in  the  hands  of  the  police ;  and  wliat 
the  master  did  must  be  considered  as  done  under  the  autiiority  of  the 
police. 

LoKD  Campbell,  C.  J.     No  ;  the  policeman  was  the  master's  agent. 

Plait,  B.     And  the  sale  was  by  direction  of  the  master. 

Beasley.  The  statute  does  not  require  that  the  receipt  should  he 
directly  from  the  thief.  It  only  requires  that  the  prisoner  should 
receive  stolen  goods,  knowing  them  to  have  been  stolen  ;  and  tliat  is 
proved  in  this  case.  In  many  cases  it  has  been  held  that  where  the 
owner  of  property  has  become  acquainted  with  a  plan  for  roltliing  him, 
his  consent  to  the  plan  being  carried  out  does  not  furnish  a  defence  to 
the  robbers.     R.  v.  Eggington,  2  B.  &  P.  508. 

Loud  Campbell,  C.  J.  But  to  constitute  a  felonious  receiving,  the 
receiver  must  know  that  at  that  time  the  property  bore  the  character 
of  stolen  property.  Can  it  be  said  that,  at  any  distance  of  time,  goods 
which  had  once  been  stolen  would  continue  to  be  stolen  goods  for  the 
purpose  of  an  indictment  for  receiving,  although  in  the  mean  time 
they  may  have  been  in  the  owner's  possession  for  yeare? 

Cresswell,  J.  The  answer  to  that  in  this  case  seems  to  be  that 
the  policeman  neither  restored  the  property  nor  the  possession  to  the 
master ;  that  the  goods  were  in  the  custody  of  the  law ;  and  that  the 
master's  presence  made  no  difference  in  that  respect. 

Beasley.  That  is  the  argument  for  the  prosecution  ;  and  it  is  man- 
ifest that  if  the  policeman  had  dissented  from  the  j)lan  of  sending 
Rogers  to  Dolan's  shop,  the  master  could  not  have  insisted  ui>ou  the 
policeman  giving  up  the  property  to  him. 

LoKD  Campbell,  C.  J.  I  feel  strongly  that  this  conviction  is  wrong. 
I  do  not  see  how  it  can  be  supported,  unless  it  could  be  laid  down 
that,  if  at  any  period  in  the  history  of  a  chattel  once  stolen,  though 
afterwards  restored  to  the  possession  of  the  owner,  it  should  N'  re- 
ceived by  any  one  with  a  knowledge  that  it  had  been  stolen,  an  otTenoc 
would  be  committed  within  the  statute.  I  think  that  that  would  not 
be  an  offence  within  the  statute  any  more  than  it  would  make  the 
receiver  an  accessory  to  the  felony  at  common  law.  If  tlie  artiele  in 
restored  to  the  owner  of  it,  and  he,  having  it  in  his  possession,  after- 


768  EEGINA   V.   DOLAN.  [CHAP.  XVI. 

wards  bails  it  to  another  for  a  pailicular  purpose  of  delivering  it  to  a 
third  person,  and  that  third  person  receives  it  from  that  bailee,  I  do 
not  see  how  it  can,  under  these  circumstances,  be  feloniously  received 
from  that  bailee.  Then  what  are  the  facts  here?  [His  Lordship 
stated  the  facts  as  above.]  Turner,  the  owner,  therefore  had,  I  think, 
as  much  possession  of  the  goods  as  if  he  had  taken  them  into  his  own 
hands,  and  with  his  own  hands  delivered  them  to  another  person  for 
a  particular  purpose,  which  was  performed.  He  was,  subsequent  to 
the  theft,  the  bailor  and  the  other  person  was  the  bailee  of  the  goods. 
Then  they  were  carried  to  the  prisoner  by  the  authority  of  the  owner ; 
and  I  cannot  think  that  under  those  circumstances  there  was  a  receiv- 
ing within  the  statute.  As  to  the  case  cited,  I  cannot  help  thinking 
that  the  facts  cannot  be  quite  accurately  stated,  and  that  there  was 
something  more  in  that  case  than  appears  in  the  report ;  but  if  not,  I 
am  bound  to  say  that  I  do  not  agree  in  that  decision. 

Coleridge,  J.  I  have  no  recollection  of  the  case  cited,  and  I  have 
no  right,  therefore,  to  say  that  it  is  not  accurately  reported ;  but, 
assuming  it  to  be  so,  I  am  bound  to  say  that  I  think  I  made  a  great 
mistake  there.  What  is  the  case?  If  for  a  moment  the  interference 
of  the  policeman  is  put  out  of  the  question,  the  facts  are,  that  the 
goods  which  had  been  stolen  were  restored  to  the  possession  of  the 
real  owner  and  were  under  his  control,  and  having  been  so  restored, 
they  were  put  again  into  the  possession  of  Rogers  for  a  specific  pur- 
pose, which  he  fulfilled.  It  seems  then  to  me  that  when,  the  second 
time,  they  reached  the  hands  of  Rogers,  they  had  no  longer  the  cliar- 
acter  of  stolen  goods.  Then,  if  that  would  be  the  case,  supposing  the 
policeman  to  be  out  of  the  question,  does  the  interference  of  the  police- 
man according  to  the  facts  here  stated  make  any  difference  ?  I  think 
not.  It  is  the  master  who  finds  the  goods  and  sends  for  a  policeman  ; 
and  it  is  by  the  authority  of  the  master  that  the  policeman  takes  and 
keeps  the  goods,  and  afterwards  hands  them  back  to  Rogers.  Indeed, 
it  seems  to  me  that  all  that  was  done  was  done  by  Turner's  authority ; 
and  that  it  must  be  considered  that  the  property  was  under  the  control 
of  the  real  owner  when  he  sent  Rogers  with  them  to  the  prisoner.  In 
this  state  of  facts,  the  interference  of  the  policeman  seems  to  me  of 
no  importance. 

Cresswell,  J.  I  do  not  dissent  from  the  decision  that  this  con- 
viction is  wrong ;  but  as  we  are  called  upon  in  this  court  to  give  the 
reasons  of  our  judgment,  I  must  say  that  I  cannot  concur  in  all  the 
reasons  which  I  have  heard  given  in  this  case.  If  it  had  been  neces- 
sary to  hold  that  a  policeman,  by  taking  the  stolen  goods  from  the 
pocket  of  the  thief,  restores  the  possession  to  the  owner,  I  should  dis- 
sent. I  think  that  we  cannot  put  out  of  question  the  interference  of 
the  policeman ;  and  that  whilst  the  goods  were  in  his  hands  they  were 
in  the  custody  of  the  law;  and  that  the  owner  could  not  have  de- 
manded them  from  the  policeman  or  maintained  trover  for  them.  But 
as  the  case  finds  that  the  policeman  gave  them  back  to  Rogers,  and 


^^^^-  "•]  KEGINA   V.   SCHMIDT.  7P,9 

then  the  owner  dosired  him  to  go  and  sell  them  to  Dolan,  I  think  that 
Kogers  was  employed  as  an  agent  of  the  owner  in  selling  thorn,  and 
that  consequently  Dolan  did  not  feloniously  receive  stolen  goo.ls. 

Flatt,  B.  I  am  of  the  same  opinion.  The  case  is,  that  the  stolen 
goods  were  found  by  the  owner  in  the  pocket  of  the  thief.  They  were 
restored  to  his  possession,  and  it  does  not  appear  to  me  very  n.aterial 
whether  that  was  done  by  his  own  hands  or  by  the  instru.ucntality  of 
the  policeman.  Things  being  in  that  state,  it  seems  to  have  com.- 
into  their  heads  that  they  might  catch  the  receiver;  and  it  was  sup- 
posed that  by  putting  the  stolen  i,roperty  back  into  the  custody  of 
Rogers,  they  could  place  all  parties  static  (juo  they  were  when  the 
property  was  found  in  the  pocket  of  Rogers ;  but  I  agree  with  the  rest 
of  the  court  that  the  Act  of  Parliament  does  not  ai)ply  to  a  case  of  this 
kind ;  for  if  it  did,  I  see  no  reason  why  it  should  not  equally  apply  to 
restored  goods  stolen  ten  years  ago. 

Williams,  J.  The  reason  why  I  think  the  conviction  wrong  is,  that 
the  receipt,  to  come  within  the  statute,  must  be  a  receipt  without  the 
authority  of  the  owner.  Looking  at  the  mere  words  of  the  indictment, 
every  averment  is  proved  by  this  evidence ;  l)ut  then  the  question  is,' 
whether  such  a  receipt  was  proved  as  is  within  the  statute,  namely,  a 
receipt  without  the  owner's  authority ;  and  here  Rogers  was  employed 
by  the  owner  to  sell  to  Dolan.  Conviction  quashed} 


REGINA  V.   SCHMIDT. 
Crown  Case  Reserved.     1866. 

[Reported  10  Cox  C.  C.  172;  Laio  Reports,  1  Crown  Cases  Reserved,  15.] 

Case  reserved  for  the  opinion  of  this  court  by  the  deputy-chair- 
man of  the  Quarter  Sessions  for  the  western  division  of  the  County  of 
Sussex. 

John  Daniels,  John  Scott,  John  Townsend,  and  Henry  Wliite  were 
indicted  for  having  stolen  a  carpet-bag  and  divers  other  articles,  the 
property  of  the  London,  Brighton,  and  South  Coast  Railway  Com- 
pany ;  and  the  prisoner,  Fanny  Schmidt,  for  having  feloniously  re- 
ceived a  portion  of  the  same  articles,  well  knowing  the  same  to  have 
been  stolen. 

The  evidence  adduced  before  me  as  deputy-chainnan  of  the  Court 
of  Quarter  Sessions  at  Chichester,  for  the  western  division  of  the 
County  of  Sussex,  on  the  20th  October,  18^5,  so  far  as  relates  to  the 
question  I  have  to  submit  to  the  Court  of  Criminal  Appeal,  was  as 
follows :  — 

»  Ace.  Reg.  V.  Hancock,  14  Cox  C.  C.  119;  U.  S.  v.  Do  Harp,  6  Him  35P.  —Ed. 

49 


770  REGINA   V.    SCHMIDT.  [CHAP.  XVL 

On  the  29th  July,  1865,  two  passengers  by  the  prosecutors'  line  of 
railway  left  a  quantity  of  luggage  at  the  Arundel  station,  which  luggage 
was  shortly  afterwards  stolen  therefrom. 

On  the  30th  July  a  bundle  containing  a  portion  of  the  stolen  prop- 
erty was  taken  to  the  Angmering  station,  on  the  same  line  of  railway, 
by  the  prisoner  Townsend,  and  forwarded  by  him  to  the  female  pris- 
oner, addressed  "  Mr.  F.  Schmidt,  Waterloo  vStreet,  Hove,  Brighton." 
The  bundle  was  transmitted  to  Brighton,  in  the  usual  course,  on  Sun- 
day morning,  the  30th. 

Meanwhile  the  theft  had  been  discovered,  and  shortly  after  the 
bundle  had  reached  the  Brighton  station,  a  policeman  (Carpenter) 
attached  to  the  railway  company,  opened  it,  and  having  satisfied  him- 
self that  it  contained  a  portion  of  the  property  stolen  from  the  Arundel 
station,  tied  it  up  again,  and  directed  a  porter  (Dunstall)  in  whose 
charge  it  was,  not  to  part  with  it  without  further  orders. 

About  8  p.  M.  of  the  same  day  (Sunday,  30th) ,  the  prisoner  John 
Scott  went  to  the  station  at  Brighton  and  asked  the  porter  (Dunstall) 
if  he  had  got  a  parcel  from  the  Angmering  station  in  the  name  of 
Schmidt,  Waterloo  Street.  Dunstall  replied  "  No."  Scott  then  said, 
"  It  is  wrapped  up  in  a  silk  handkerchief,  and  is  directed  wrong;  it 
ought  to  have  been  directed  to  22  Cross  Street,  Waterloo  Street." 
Dunstall,  in  his  evidence,  added,  "  I  knew  the  parcel  was  at  the 
station,  but  I  did  not  say  so  because  I  had  received  particular  orders 
about  it." 

The  four  male  prisoners  were  apprehended  the  same  evening  in 
Brighton  on  the  charge,  for  which  they  were  tried  before  me  and 
convicted. 

On  Monday  morning,  the  31st  July,  the  porter  (Dunstall),  by  the 
direction  of  the  policeman  (Carpenter)  took  the  bundle  to  the  house 
No.  22  Cross  Street,  Waterloo  Street,  occupied  as  a  lodging-house  and 
beer-house  by  the  female  prisoner  and  her  husband  (who  was  not  at 
home  or  did  not  appear),  and  asked  if  her  name  was  Schmidt,  on 
ascertaining  which  he  left  the  bundle  with  her  and  went  away.  Car- 
penter and  another  policeman  then  went  to  the  house,  found  the  bundle 
unopened,  and  took  the  prisoner  to  the  town  hall. 

All  the  prisoners  were  found  guilty,  and  I  sentenced  each  of  them  to 
six  months'  imprisonment  with  hard  labor.  They  are  now  in  Petworth 
jail  in  pursuance  of  that  sentence. 

At  the  request  of  the  counsel  for  the  female  prisoner  I  consented  to 
reserve  for  the  opinion  of  this  court  the  question,  — 

Whether  the  goods  alleged  to  have  been  received  by  her  had  not, 
under  the  circumstances  stated,  lost  their  character  of  stolen  property, 
so  that  she  ought  not  to  have  been  convicted  of  receiving  them  with 
a  guilty  knowledge  within  the  statute.  Hasler  Hollist. 

Pearce  ( Willonghby  with  him),  for  the  prisoner.  The  conviction  is 
wrong.     To  support  a  conviction  for  receiving  stolen  goods,  it  must 


SECT.  II. j  REGIX.V   V.   SCHMIDT.  771 

appear  that  the  receipt  was  without  the  owner's  authority.  In  this 
case,  in  consequence  of  the  conduct  of  the  railwny  coiui)auy,  the 
property  had  lost  its  character  of  sUjIcu  i>roi.crly  at  the  time  it  was 
delivered  at  the  receiver's  house  l.y  tlie  raihvuy  porter.  The  property 
is  laid  in  the  indictment  as  the  property  of  the  railway  company,  and 
Carpenter  was  not  an  ordinary  policeman,  but,  as  the  case  stat^^'s,  a 
policeniau  attached  to  the  railway  company.  He  op.-ns  the  l.undle, 
and  finding  therein  some  of  the  stolen  iiroperty,  he  j^ives  it  to  Dun- 
stall,  and  orders  it  to  be  detained  until  further  orders,  aiul  in  the 
meantime  the  thieves  were  arrested ;  Carpenter  then  directs  Dunslall 
to  take  the  bundle  to  the  receiver's  house,  so  that  the  receiver  p>t  the 
stolen  property  from  the  railway  company,  who  alone  on  thin  indict- 
ment are  to  be  regarded  as  the  owners  of  tiie  inoperty.  The  railway 
company,  the  owners,  havijig  got  their  property  back,  make  what  nmst 
be  considered  a  voluntary  delivery  of  it  to  the  receiver.  The  case  in 
similar  to  Regina  v.  Dolan,  6  Cox  C.  C.  449 ;  1  Dears.  C.  C.  -ViC, 
where,  stolen  goods  being  found  in  the  pockets  of  the  thief  by  the 
owner,  who  sent  for  a  policeman,  and  then,  to  trap  the  receiver,  the 
goods  were  given  to  the  thief  to  take  them  to  the  receiver's,  which  lie 
did,  and  the  receiver  was  afterwards  arrested,  it  was  held  that  tlie 
receiver  was  not  guilty  of  feloniously  receiving  stolen  goods,  inasujuch 
as  they  were  delivered  to  him  under  the  authority  of  tlie  owner.  In 
that  case  Regina  r.  Lyons,  C.  &  M.  217,  was  expressly  overruled. 
Lord  Campbell,  C.  J.,  said,  in  Hegina  r.  Dolan,  "  If  an  article  once 
stolen  has  been  restored  to  the  owner,  and  he  having  had  it  fully  in  his 
possession,  bails  it  for  any  particular  purpose,  how  can  any  person 
who  receives  the  article  from  the  bailee  be  said  to  be  guilty  of  receiv- 
ing stolen  goods  within  the  meaning  of  the  Act  of  Parliament  ? " 

Hurst,  for  the  prosecution.  Uuless  this  case  is  distinguishable  from 
Regina  v.  Dolan,  the  conviction,  it  must  be  conceded,  is  wrong.  Hut 
the  facts  of  this  case  are  more  like  the  view  taken  by  Cresswell,  .1.,  in 
Regina  v.  Dolan,  "That  while  the  goods  were  in  the  hands  of  the 
policeman,  they  were  in  the  custody  of  the  law  ;  and  the  owner  could 
not  have  demanded  them  from  the  policeman,  or  maintained  trover 
for  them."  In  that  case  the  real  owner  intervened,  and  had  manual 
possession  of  the  stolen  goods ;  here  he  does  not.  The  goods  l>e- 
longed  to  the  railway  passenger,  and  the  company  are  only  bailees. 
[Mellor,  J.  The  policeman  merely  opened  tlie  bundle  in  the  course 
of  its  transit  to  see  what  was  in  it,  and  then  sent  it  according  to  its 
direction.  It  was  in  the  hands  of  the  policeman,  not  of  the  company. 
Erle,  C.  J.  Suppose  a  laborer  steals  wheat,  and  he  sends  it  by  a  l)oy 
to  his  accomplice,  and  the  policeman  stops  the  boy,  ascertains  what  he 
has  got,  then  tells  him  to  go  on,  and  follows  and  apprehends  the  ac- 
complice, is  not  the  accomplice  guilty  of  feloniously  receiving?  Mkl- 
LOR,  J.  Here  the  policeman  does  nothing  to  alter  the  destination  of 
the  bundle.  The  element  of  the  real  owner  dealing  with  the  stolen 
property  is  wanting  in  this  case.     Keati.sc,  J.     Scott  directs  the  ad- 


772  EEGINA   V.   SCHMIDT.  [CHAP.  XVL 

dress  to  be  changed.]  The  bundle  was  sent  by  the  thieves  through  the 
railway  company  to  the  receivers ;  the  real  owner  had  nothing  to  do 
with  this  part  of  the  transaction.  [Lush,  J.  If  the  true  owner  had 
sued  the  company  for  the  property,  the  company  could  not  have  jus- 
tified detaining  or  converting  it.]  If  a  policeman  knows  of  stolen 
goods  being  in  the  hands  of  an  innocent  agent,  and  does  not  take 
possession  for  the  owner,  and  the  innocent  agent,  by  the  policeman's 
directions,  delivers  them  to  a  receiver,  that  does  not  prevent  the 
receiver  being  guilty  of  feloniously  receiving. 

Pearce,  in  reply.  Before  the  bundle  was  sent  out  for  delivery  the 
thieves  were  in  custody,  and  having  secured  them,  Carpenter  then 
gives  orders  for  the  bundle  to  be  delivered  to  the  receiver.  Carpenter 
was  the  servant  of  the  railway  company,  who  are  the  owners  for  the 
purpose  of  this  indictment,  and  the  delivery  therefore  was  by  the 
owners. 

[Erle,  C.  J.,  and  Mellor,  J.,  were  of  opinion  that  the  conviction 
was  right,  but  Martin,  B.,  Keating,  and  Lush,  JJ.,  held  the  convic- 
tion wrong.  In  consequence  of  the  prisoner  having  suffered  half  the 
term  of  imprisonment  from  inability  to  get  bail  and  the  further 
unavoidable  delay,  the  case  was  not  sent  to  be  argued  before  all  the 
judges.] 

Martin,  B.  I  think  that  this  conviction  was  wrong  on  two  grounds, 
the  one  substantial,  the  other  formal.  I  think  that  Mr.  Pearce's  argu- 
ment, founded  on  the  indictment,  that  the  property  is  there  laid  to  be 
property  of  the  railway  company,  is  well  founded  ;  and  it  seems  to  me 
that  Dolan's  case  applies  to  this. 

Erle,  C.  J.  I  am  of  opinion  that  the  conviction  was  right.  The 
question  is  whether,  at  the  time  this  stolen  property  was  received  by 
the  prisoner,  it  was  the  property  of  the  London  and  Brighton  Railway 
Company ;  and  if  so  whether,  when  the  policeman  Carpenter  caused 
the  delivery  to  be  stopped  for  the  purpose  of  detecting  the  parties 
implicated,  it  thereby  lost  the  character  of  stolen  property.  If  it  had 
lost  the  character  of  stolen  property  at  the  time  it  was  received  by  the 
prisoner,  the  receiving  by  her  will  not  amount  to  felony.  But  in  this 
case  I  think  that  the  railway  company,  when  they  took  this  bundle  into 
their  possession,  were  acting  as  bailees  of  the  thief,  and  were  innocent 
agents  in  forwarding  it  to  the  receiver,  and  that  the  things  did  not  lose 
their  character  of  stolen  property  by  what  was  done  by  the  policeman. 

Keating,  J.  I  agree  with  my  brother  Martin  that  the  conviction 
was  wrong.  It  seems  conceded,  on  the  authority  of  Dolan's  case,  that  if 
the  property  had  got  back  again  for  any  time  into  the  hands  of  the  true 
owner,  the  conviction  would  be  wrong.  It  is  said  that,  in  this  case, 
the  owners  mentioned  in  the  indictment,  the  railway  company,  were 
not  the  real  owners,  whereas  in  Dolan's  case  the  real  owner  intervened. 
But  I  think  there  is  no  distinction  in  principle  between  this  case  and 
that.  The  railway  company  are  alleged  in  the  indictment  to  be  the 
owners  of  the  property,  and  we  sitting  here  can  recognize  no  other 


SECT.  II.]  REGINA   V.   SCHMIDT.  773 

persons  than  them ;  they  are  tlie  owners  from  wljoin  the  property  was 
stolen,  and  it  got  back  to  their  possession  before  it  was  received  by  the 
prisoner.  I  can  see  no  real  distinction  between  this  ctum  and  Dolan'ii. 
All  the  reasons  given  for  the  judgment  in  that  ea^e  apj)ly  eipially  to 
tlie  case  of  the  ownership  in  this  cusv.  Tlic  principle  1  tjike  to  Jx*, 
that  when  once  the  party  having  the  right  of  control  of  the  property 
that  is  stolen  gets  that  control,  the  transaction  is  at  an  end,  ami  there 
can  be  no  felonious  receipt  afterwards.  I  think  the  test  put  by  my 
brother  Lush  in  the  course  of  the  argument,  as  to  the  real  owner  suing 
the  railway  compau}'  for  the  property  after  they  had  got  the  conlrcjl  of 
it,  is  decisive  of  the  matter. 

Mellou,  J.  I  agree  entirely*  with  my  brother  Eric,  C,  J.,  and  think 
the  conviction  was  right.  The  indictment  rightly  alleges  the  proiHjrty 
to  have  been  in  the  railway  company  at  the  time  it  wjvs  stolen  ;  they 
had  the  bailment  of  it  from  the  true  owner.  Then  it  is  stolen  wliile  in 
their  custody,  and  the  next  step  is,  the  thieves  afterwards  send  a  |>or- 
tion  of  it  by  the  same  railway  company  to  be  forwarded  to  the  receiver 
at  Brighton ;  so  that  the  railway  company  get  possession  of  this  part 
from  the  thieves  under  a  new  bailment.  Then  the  policeman  examines 
the  property  and  directs  it  not  to  be  forwarded  until  furtlier  orders  ; 
but  this  was  not  done  with  the  view  of  taking  possession  of  it  or  alter- 
ing its  transit,  but  merely  to  see  whether  it  was  the  stolen  property. 
I  agx-ee  with  Dolan's  case,  but  in  the  present  case  I  think  the  stolen 
property  had  not  got  back  to  the  true  owner. 

Llsii,  J.  I  agree  with  my  brothers  Martin,  li.,  and  Keating,  .1., 
and  think  that  the  conviction  was  wrong.  I  think  that  the  goo<ls  had 
got  back  to  the  owner  from  whom  they  had  been  stolen.  Uad  the  rail- 
way company  innocently  carried  the  goods  to  their  destination  and 
delivered  them  to  the  prisoner,  the  felonious  receipt  would  have  been 
complete ;  but  while  the  goods  are  in  their  possession,  having  been 
previously  stolen  from  them,  the  goods  are  inspected,  and  as  soon  as  it 
was  discovered  that  they  were  the  goods  that  had  been  stolen,  the 
railway  company  did  not  intend  to  carry  them  on  as  the  agents  of  the 
bailor ;  the  forwarding  them  was  a  mere  pretence  for  the  purpose  of 
finding  out  who  the  receiver  was.  It  was  not  competent  to  the  railway 
company  to  say,  as  between  them  and  the  original  bailor,  that  they  had 
not  got  back  the  goods.  They  were  bound  to  hold  them  for  liiin.  In 
afterwards  forwarding  the  goods  to  the  prisoner,  the  company  was 
using  the  transit  merely  as  the  means  of  detecting  the  receiver. 

Mautin,  B.  I  only  wish  to  add  that  I  meant  to  say  that  I  think 
the  conviction  wrong  in  substance  in  consequence  of  the  interference  of 
the  policeman  with  the  property,  and  this  independently  of  tlie  form 
of  indictment.  Conviction  qtiathed} 

»  Ace.  Reg.  V.  ViUensky,  [1892]  2  Q.  B.  597.  —  Ed. 


774  REGINA  V.   CARR.  [CHAP.  XVI 


REGINA  y.  CARR. 
Central  Criminal  Court.     1877. 

[Reported  15  Cox  C.  C.     131  n.] 

John  Carr  was  indicted  for  stealing  168  bonds  of  the  Peruvian 
Government,  the  property  of  Lionel  Cohen  and  others ;  second  count 
for  feloniously  receiving  the  same. 

There  were  other  counts  charging  him  as  an  accessary  before  and 
after  the  fact. 

The  Solicitor  General  and  Poland  were  counsel  for  the  prosecution, 
and  Besley  and  Grain  for  the  defence. 

The  bonds  in  question,  on  the  2d  June,  1877,  were  transmitted  by 
the  prosecutors  to  a  customer  in  Paris,  They  were  traced  safely  as 
far  as  Calais  and  were  stolen  from  the  train  after  leaving  that 
place. 

On  the  4th  of  September  the  prisoner  was  found  dealing  with  them 
in  London,  and  the  question  arose  as  to  the  jurisdiction  of  this  court 
to  try  the  case,  the  robbery  having  been  committed  in  France. 

The  Solicitor  General  submitted  that  the  prosecutors  never  having 
parted  with  their  property  in  the  bonds,  they  were  still  under  the  pro- 
tection of  the  law,  and  that  the  subsequent  possession  of  the  bonds 
in  this  country  was  sufficiently  recent  to  enable  the  jury  to  find  a 
verdict  of  larceny  against  a  person  who  was  dishonestly  dealing  with 
them  here.  The  decision  in  Rex  v.  Prowes,  1  Moody  C.  C.  349,  was 
certainly  opposed  to  this  view ;  but  no  reasons  were  given  for  that 
judgment,  and  a  doubt  as  to  the  soundness  of  the  decision  was  ex- 
pressed by  Parke,  B.,  in  Regina  v.  Madge,  9  C.  «fe  P.  29.  The  case  of 
Regina  v.  Debrueill,  11  Cox  C.  C.  207,  was  referred  to.  As  to  the 
counts  charging  the  prisoner  with  receiving,  and  also  as  an  accessary, 
the  24  &  25  Vict.  c.  94  contemplated  a  case  of  this  kind,  where  the 
original  offence  was  committed  abroad. 

Besley  relied  on  the  decision  in  Rex  v.  Prowes,  iibisup.,  and  Regina 
V.  Hogetoran,  Cent.  Crim.  Court  Sess.  Paper,  vol.  79,  268,  and  Regina 
V.  Nadal,  84  Cent.  Crim.  Court  Sess.  Paper,  295. 

Denman,  J.  There  can  be  no  doubt  that  this  was  a  larceny  fully 
completed  in  France.  I  do  not  at  all  say  that  it  might  not  be  a  very 
reasonable  thing  that  any  one  afterwards  dealing  here  with  property 
so  stolen  might  make  cogent  evidence  of  having  received  them  know- 
ing them  to  have  been  stolen,  just  as  much  as  if  they  had  been  stolen 
in  England ;  but  it  appears  to  me  that  the  point  has  been  too  solemnly 
decided  for  me  to  give  the  go-by  to  those  decisions.  It  has  been 
solemnly  decided  and  acted  upon  so  often  that  there  is  no  jurisdiction 
in  England  to  try  a  case  where  the  stealing  has  been  committed  abroad, 
either  against  the  principal  or  the  accessory,  that  I  have  nothing  to  do 
but  to  act  upon  those  decisions  and  to  direct  an  acquittal  in  this  case. 


SECT.  II.]  STATE   V.    IVES. 


I  to 


I  entertain  no  doubt  that  the  case  of  Rex  v.  Prowes,  ubi  sup.,  \b 
directly  iu  point,  and  Kegina  v.  Mad^je,  ubi  sujk,  fortifies  it  to  the 
extent  of  recognizing  and  acting  ui)ou  it.  Debrueiirs  ca«e  also 
decides  that  a  conviction  of  receiving  under  Himiliar  circumstancefl 
could  not  be  sustained.     The  prisoner  must  therefore  be  ucquitltd. 


STATE  V.   IVES. 
Supreme  Court  of  North  Cauolina.     1852. 

[Reported  13  Iredell,  338] 

Appeal  from  the  Superior  Court  of  Law  of  Currituck  County,  at  the 
fall  term,  1851,  his  honor  Judge  Settle  presiding. 

The  defendant  was  indicted  for  receiving  stolen  goods,  and  was  con- 
victed upon  the  following  counts  in  the  bill  of  indictment :  — 

5th  count.  And  the  jurors,  etc.,  do  further  present,  that  the  said 
Josiah  Ives,  afterwards,  to  wit,  on  the  Ist  day  of  February,  a.  d. 
1851,  in  the  county  aforesaid,  with  force  and  arms,  one  bale  of  cotton, 
of  the  value  of  ten  shillings,  and  one  barrel  of  tar,  of  the  value  of  six 
shillings,  of  the  goods  and  chattels  of  said  Caleb  T.  Sawyer,  before 
then  feloniously  stolen,  taken,  and  carried  away,  feloniously  ditl  re- 
ceive and  hire,  he,  the  said  Josiah  Ives,  then  and  there  well  knowing 
the  said  goods  and  chattels  to  have  been  feloniously  stolen,  taken,  and 
carried  away,  contrary  to  the  form  of  the  statute  in  such  cases  made 
and  provided,  and  against  the  peace  and  diguity  of  the  State. 

6th  count.  And  the  jurors,  etc.,  do  further  present,  that,  at  and  in 
the  county  aforesaid,  on  the  1st  day  of  March,  1H51,  certain  goods  and 
chattels,  to  wit,  one  bale  of  cotton,  of  the  value  of  ten  shillings,  and 
one  barrel  of  tar,  of  the  value  of  six  shillings,  of  the  goods  and  chattels 
of  Caleb  T.  Sawyer,  feloniously  were  stolen,  taken,  and  carried  away, 
by  some  person  to  the  jurors  unknown  ;  and  that  the  said  Josiah  Ives, 
afterwards,  to  wit,  on  the  2d  day  of  March,  1851,  in  the  county  afore- 
said, the  said  bale  of  cotton  and  the  said  barrel  of  tar  feloniously  did 
have  and  receive,  he,  the  said  Josiah  Ives,  on  the  day  and  year  last 
aforesaid,  in  the  county  aforesaid,  well  knowing  the  said  bale  of 
cotton  and  the  said  barrel  of  tar  to  have  been  theretofore  feloniously 
stolen,  taken,  and  carried  aw.ay,  contrary  to  the  form  of  the  statute  in 
such  case,  made  and  provided,  and  ag.oinst  tho  peace  and  dignity  of 
the  State. 

There  was  a  motion  in  arrest  of  judgment,  which  was  overruled. 
Judgment  against  the  defendant,  from  which  he  aj^pealeU  to  the 
Supreme  Court. 

Pearson,  J.  The  defendant  was  convicted  upon  the  fifth  and  sixth 
counts  iu  the  bill  of  indictment ;  and  the  case  is  here  u\k>u  a  motion  in 


776  STATE  V.   IVES.  [CHAP.  XVL 

arrest  of  judgment.  The  fifth  count  was  abandoned  by  the  Attorney 
General,  and  the  question  is  upon  the  sixth  count. 

A  receiver  of  stolen  goods  is  made  an  accessary  by  the  statute  of 
Anne ;  and  it  is  provided,  by  another  section  of  that  statute,  that,  if 
the  principal  felon  escapes  and  is  not  amenable  to  the  process  of  the 
law,  then  such  accessory  may  be  indicted,  as  for  a  misdemeanor.  This 
statute  was  so  construed  as  to  require,  in  the  indictment  for  a  misde- 
meanor, an  averment  that  the  principal  felon  was  not  amenable  to  the 
process  of  the  law.  Foster,  373.  Our  statute,  Rev.  Stat.  c.  34,  §§  53 
and  54,  is  taken  from  the  statute  of  Anne,  and  has  received  a  similar 
construction.  Groflf's  case,  1  Mur.  270,  and  see  the  remarks  of  Hen- 
derson, judge,  in  Good's  case,  1  Hawks,  463. 

The  objection  taken  to  the  indictment,  is  the  absence  of  an  averment, 
that  the  principal  felon  is  not  amenable  to  the  process  of  the  law  ;  and 
it  is  insisted  that,  as  the  principal  felon  is  alleged  to  be  some  person 
to  the  jurors  unknown,  it  could  not  be  averred  that  he  had  "  escaped 
and  eluded  the  process  of  the  law,"  in  the  words  used  by  our  statute, 
and  it  was  urged  that  the  statute  did  not  apply  to  a  case  of  the  kind. 

The  Attorney  General  in  reply  took  the  position,  that  the  averment 
that  the  principal  felon  was  some  person  to  the  jurors  unknown,  neces- 
sarily included  and  amounted  to  an  averment,  that  he  had  escaped  and 
eluded  the  process  of  the  law,  so  as  not  to  be  amenable  to  justice. 
This  would  seem  to  be  so ;  but  we  give  no  definite  opinion,  because 
there  is  another  defect  in  the  count,  which  is  clearly  fatal. 

After  averring  that  the  cotton  and  tar  had  been  stolen  by  some  per- 
son to  the  jurors  unknown,  the  indictment  proceeds:  "Afterwards, 
etc.,  the  said  Josiah  Ives,  the  said  bale  of  cotton  and  the  said  barrel 
of  tar  feloniously  did  have  and  receive,  well  knowing  the  said  bale  of 
cotton  and  barrel  of  tar  to  have  been  theretofore  feloniously  stolen," 
etc.  There  is  no  averment  from  whom  the  defendant  received  the  cot- 
ton and  tar.  We  cannot  imply  that  he  received  them  from  the  person 
who  stole  them.  It  may  be  that  he  received  them  from  some  third 
person ;  and  this  question  is  presented :  A.  steals  an  article,  B. 
receives  it,  and  C.  receives  it  from  B.  Does  the  case  fall  within  the 
statute?  "We  think  not.  The  statute  obviously  contemplates  a  case 
where  goods  are  received  from  the  person  who  stole  them ;  he  is 
termed  the  principal  felon.  In  the  case  put  above,  A.  is  the  principal 
felon,  B.  is  his  accessory,  but  C.  is  a  receiver  from  a  receiver,  —  an 
accessory  of  an  accessory.  In  fact,  it  cannot  be  said  whether  A.  or  B. 
is  the  principal  felon  in  regard  to  him. 

The  statute  does  not  provide  for  such  a  case.  It  makes  the  receiver 
an  accessory ;  and  in  case  the  principal  is  not  amenable  to  the  process 
of  law,  such  accessory  may  be  prosecuted  as  for  a  misdemeanor. 
'  Consequently  it  is  necessary  to  point  out  the  principal,  and  the  matter 
is  involved  in  the  doctrine  of  "principal  and  accessory."  This  and 
many  other  omissions  are,  in  England,  remedied  by  the  statutes,  W. 
III.  and  G.  II.,  by  which  "  the  act  of  receiving"  is  made  a  substantive 


SECT.  III.]  REGINA  V.   ADAM.S.  777 

felony,  without  reference  to  the  person  who  stole  or  the  person  from 
whom  the  goods  are  received.  Under  those  statutes,  the  lifth  count, 
which  the  Attorney  General  has  properly  abandoned,  would  be  good ; 
for  the  oCfence  is  to  "  receive  and  have  "  stolen  goo<ls.  We  have  not 
adopted  those  statutes.  Of  course  the  decisions  and  forms  in  the  mod- 
ern English  books  cannot  aid  us.  Duncan's  case,  G  Ired.  1)8,  prcaeuU* 
another  instance,  to  provide  for  whicli  we  have  no  statute. 

Per  Curiam.     Judgment  below  reversed,  and  judgment  arrested.* 


SECTION   III. 

Ciuilty  Knoivledje. 

REGINA  V.   ADAMS. 
Bristol  Assizes.     1858. 

[Reported  1  Foster  i^-  Finlason,  86.] 

Larceny  and  Receiving.  The  woman  was  charged  with  having 
stolen,  and  the  man  (her  husband)  with  having  received,  eleven  mining 
tools.  The  evidence  was  that  the  woman  had  picked  them  up  from  a 
rubbish-heap,  where  they  had  been  placed  (not  as  rubbish),  on  the 
premises  of  the  prosecutor,  and  delivered  them  to  the  man,  telling  him 
how  she  had  obtained  them,  and  that  he  had  sold  them  as  old  iron. 

Ckowder,  J.  (to  the  jury),  after  stating  to  them  the  law  as  to  the 
duty  of  a  finder  of  property,  as  applicable  to  the  charge  against  the 
woman,  and  leaving  the  case  as  against  her  with  them  :  Before  you 
can  convict  the  man  you  must  be  satisfied  that  he  knew  that  the  gooils 
had  been  stolen.  It  may  be  that  he  did  not  know  (upon  the  law  as  I 
have  laid  it  down,  as  to  the  duty  of  the  finder  of  property  to  take 
proper  means  to  find  the  owners)  that  this  was  a  theft."  If  so,  he 
cannot  be  guilty  of  receiving  with  a  guilty  knowledge  of  the  goods 
being  stolen. 

Both  guilty  ;  recommended  to  mercy  ;  fourteen  days'  imprisofunetU. 

1  See  Rex  v.  Messingham,  1  Moo.  C  C.  257;  Reg.  v.  Reardou,  L.  R.  1  C.  C  It  11. 
—  Ed. 

'^  That  is,  it  is  apprehended  that  the  other  prisoner  had  not  taken  proper  meatiS 
to  find  the  owner.  —  Ref. 


778  COMMONWEALTH   V.   LEONARD.  [CHAP.  XVL 


REGINA  V.  WHITE. 
Winchester  Assizes.     1859. 

[Reported  1  Foster  ^-  Finlason,  665.] 

Receiving.  The  prisoner  was  charged  with  receiving  lead,  the 
property  of  the  Queen,  he  well  knowing  it  to  have  been  stolen. 

Bramwell,  B.  {to  the  jury).  The  knowledge  charged  in  this  indict- 
ment need  not  be  such  knowledge  as  would  be  acquired  if  the  prisoner 
had  actually  seen  the  lead  stolen  ;  it  is  sufficient  if  you  think  the  cir- 
cumstances were  such,  accompan3'iug  the  transaction,  as  to  make  the 
prisoner  believe  that  it  had  been  stolen.  Guilty. 


COMMONWEALTH   v.   LEONARD. 
Supreme  Judicial  Court  of  Massachusetts.     1886. 

[Reported  140  Massachusetts,  473.] 

Indictment  in  three  counts.  The  first  count  alleged  that  on  July  1, 
1883,  certain  articles,  the  goods,  chattels,  and  property  of  the  Boston 
and  Lowell  Railroad  Corporation,  were  feloniously  stolen,  and  that 
the  defendant  afterward,  on  the  same  day,  "  the  goods,  chattels,  and 
property  aforesaid,  so  as  aforesaid  feloniously  stolen,  taken,  and 
carried  away,  feloniously  did  receive  and  have,  and  did  then  and  there 
aid  in  the  concealment  of  the  same,"  he  "  well  knowing  the  said  goods, 
chattels,  and  property  to  have  been  feloniously  stolen,  taken,  and 
carried  away." 

The  second  and  third  counts  were  similar  in  form,  but  the  property 
was  in  each  differently  described  and  at  a  different  date,  namely,  on 
August  1,  1883,  and  September  1,  1883,  respectively.^ 

The  defendant  asked  the  judge  to  instruct  the  jury  as  follows : 
*'  1.  If  the  jury  are  not  satisfied  beyond  a  reasonable  doubt  that  the 
accused  knew  that  the  goods  were  stolen  he  is  entitled  to  an  acquittal. 
2.  To  justify  a  conviction  it  is  not  sufficient  to  show  that  the  accused 
had  a  general  knowledge  of  the  circumstances  under  which  the  goods 
were  stolen,  unless  the  jury  are  also  satisfied  that  he  knew  that  the 
circumstances  were  such  as  constituted  larceny." 

The  judge  refused  to  give  these  instructions,  and  upon  the  matters 
embraced  therein  instructed  the  jury  as  follows  :  — 

"  He  must  know  that  the  goods  were  stolen,  but  he  does  not  need  to 
know  the  hour  nor  day  they  were  stolen ;  he  must  undoubtedly  have 
notice  which  would  put  him  on  his  guard  as  knowledge  that  the  goods 

1  Part  of  the  case,  not  involving  a  question  of  guilty  knowledge,  is  omitted. 


SECT.  III.]  COMMONWEALTH   v.   LEONARD.  779 

were  acquired  and  turned  over  to  liim  l.y  a  person  not  taking  them  hy 
mistake,  not  by  right,  but  taking  them  as  thieves  take  them,  that  ih, 
for  the  purpose  of  defrauding  the  raihoad  and  cheating  them  out  of 
their  property." 

The  defendant's  counsel  here  suggested  "by  larcony,"  and  the 
judge  gave  this  further  instruction  :  — 

"  By  the  taking  and  carrying  away  of  prui.orly  it  ib  the  fraucUilent 
taking  away  of  the  property  of  another  for  the  purpose  of  converting 
it  to  the  taker's  use  to  deprive  the  owner  of  it.  These  g(XKls  mubt 
have  been  taken  that  way  and  were  stolen  goods;  tliey  must  have 
been  taken  by  McCarthy  as  thieves  take  them,  not  by  mistake  or 
accident,  or  by  taking  from  those  who  had  no  right  to  give,  but  taking 
when  he  knew  that  he  had  no  right  to  take  them." 

The  jury  returned  a  verdict  of  guilty  on  the  third  count,  and  of  not 
guilty  on  the  other  counts,  and  the  defendant  alleged  excei)tionB. 

FiiiLi),  J.  The  offence  of  receiving  stolen  property,  knowing  it 
to  have  been  stolen,  must  be  considered  as  distinct  from  the  offence  of 
receiving  embezzled  property  knowing  it  to  have  been  embezzled,  Pub. 
Sts.  c.  203,  §§  48,  51,  although  embezzlement  under  our  statutes  has 
been  held  to  be  a  species  of  larceny.  Commonwealtli  r.  Pratt,  i;i2 
Mass.  246.  The  punishments  of  the  two  offences  may  be  different,  as 
the  offence  of  receiving  embezzled  goods  may  be  punished  by  a  fine 
without  imprisonment.  If  the  property  had  actually  been  stolen,  a  l>e- 
lief  on  the  part  of  the  defendant  that  it  had  been  stolen  is  tantamount 
to  knowledge.  If  the  defendant  knew  all  the  facts  and  the  fact.s  con- 
stituted larceny  as  distinguished  from  embezzlement,  it  would  l)e  no 
defence  that  the  defendant  thought  that  the  facts  constituted  embez- 
zlement. If  the  defendant  did  not  know  the  facts,  but  believed  from 
the  circumstances  that  the  property  had  been  either  emlu'zzled  or 
stolen,  and  it  had  been  actually  stolen,  it  was  competent  for  tlie  jury  to 
find  the  defendant  guilty  of  the  offence  charged.  The  second  request 
for  instructions  was  therefore  rightly  refused. 

The  first  request  for  instructions  states  the  law  with  substantial  cor- 
rectness. It  is  contended  that  the  instructions  given  on  this  point, 
rightly  construed,  are  the  same  in  effect.  We  find  it  unnecessary  to 
decide  whether  the  case  called  for  a  more  careful  definition  of  larceny 
as  distinguished  from  embezzlement  or  from  wilful  trespass. 

Exceptions  sustained.^ 

1  See  Reg.  v.  Rymes,  3  C.  &  K.  326.  —  Ed. 


7S0  BUKGLAfiy.  [chap,  xvil 


CHAPTER  XYII. 
CRIMES  AGAINST  THE  DWELLIXG-HOUSE. 


SECTION   I. 

Burglary. 


Staunford,  Pleas  of  the  Crown,  30  a.  Burglars  are  those  who  feloni- 
ously in  time  of  peace  break  bouses,  churches,  walls,  towers,  or  gates, 
for  which  burglary  they  shall  be  hanged,  though  they  took  nothing  away. 
Ut2)atet  tit.  Coron.  in  Fitz.  p.  264,  p.  185,  &  p.  178.  But  yet  they  ought 
to  have  felonious  intent  to  rob  or  kill  or  do  other  felony.  For  if  a  man 
be  indicted  quod  domum  J.  S.  felonice  /regit  ad  ipsum  verherandum, 
that  is  only  trespass,  for  by  this  his  intent  in  the  breaking  is  made 
known.  It  is  otherwise  if  it  be  domum  f regit  ad  ipsum  interficiendum., 
&c.  But  if  a  man  be  indicted  quod  clausxcm  I.  S.  felonice /regit  ad 
ipsum  interficiendum^  that  is  not  burglary,  per  Hankford  &  Hill,  M. 
13  H.  4,  f  7.  The  same  is  law  if  he  break  the  house  and  do  not  enter 
into  it.  Et  nota  that  for  anything  contained  in  those  books,  burglary 
may  be  done  as  well  by  day  as  by  night,  &c.  But  the  law  is  not  so 
taken,  for  all  the  indictments  for  burglary  are  quod  noctanter  /regit, 
&c.  Vide  Britton  for  burglars,  fo.  17  ;  for  I  do  not  remember  that  I 
have  read  anything  of  it  in  Bracton,  save  that  he  speaks  in  one  place 
in  this  way,  scil.  "  Si  quis  homsoTcen,  quae  dicitur  i7ivasio  domus  contra 
pacem,  in  domo  suo  de/enderit  &  invasor  occisus  fuerit  impersequutus, 
&  inultus  remanebit,  dum  tamen  ille  qui  invasus  est,  aliter  se  de/endere 
non  potuit.  Quia  dicitur  non  est  dignus  pace  qui  non  vult  servare 
earn,"  &c. 

1  Hawk.  P.  C.  ch.  17,  Sects.  1,  2,  3,  11,  18,  21.  Burglary  is  a 
felony  at  the  Common  Law.  in  breaking  and  entering  the  mansion- 
house  of  another,  or  (as  some  say)  the  walls  or  gates  of  a  walled  town 
in  the  night,  to  the  intent  to  commit  some  felony  within  the  same, 
whether  the  felonious  intent  be  executed  or  not. 

There  are  some  opinions,  that  burglary  may  be  committed  at  any 
time  after  sun-set  and  before  sun-rising ;  but  it  seems  the  much  better 


SECT.  I.]  ANONYMOL'S.  7irl 

opinion  that  the  word  noctauter,  which  is  i)rccisL-ly  necessary  hi  every 
indictment  for  this  offence,  cannot  be  satisfied  in  a  legal  senKo,  if  it 
appear  upon  the  evidence,  that  there  was  so  nnich  (hiyliglit  at  the  time 
that  a  man's  countenance  might  be  discertied  thereby.' 

Notwithstanding  some  loose  opinions  to  tlie  contrary,  there  .seems  lo 
be  no  good  cause  to  doiil)t  lnit  that  Ixjtli  [an  actual  entry  and  breaking] 
are  required  to  complete  this  offence  ;  Un-  the  \\on\Hf regit  and  intravit 
being  both  of  them  precisely  necessary  in  the  indictment,  bolli  must  Im? 
satisfied.  And  a  fortiori  therefore  there  can  be  no  burglarv  where 
there  is  neither  of  them  ;  as  if  on  a  bare  assault  uj.ou  :i  house,  the 
owner  fling  out  his  money. 

Any  the  least  entry  either  with  the  whole,  or  but  with  part  of  tlie 
body,  or  with  any  instrument,  or  weapon,  will  satisfy  the  word  intntrit 
in  an  indictment  of  burglary  ;  as  if  one  do  but  put  his  foot  over  a 
threshold,  or  his  hand  or  a  hook  or  pistol  within  a  window,  or  turn  tli.- 
key  of  a  door  which  is  locked  on  the  inside,  or  disciiarge  a  loaded  gun 
into  a  bouse,  &c. 

A  house  wherein  a  man  dwells  but  for  part  of  the  year  ....  may  be 
called  his  dwelling-house  ;  and  will  sufliciently  satisfy  the  words  (hmiua 
majisionalin  in  the  indictment,  whether  any  person  were  actually 
therein  or  not,  at  the  time  of  the  offence. 

All  out-buildings,  as  barns,  stables,  dairy-houses,  «S:c.,  adjoining  to 
a  house,  are  looked  upon  as  part  thereof,  and  consequently  burglary 
may  be  committed  in  them. 


ANONYMOUS. 

Lknt   Assizks.     1554. 

[Reported  Di/er,  99a,  /»/.  5S.] 

OxE  was  indicted  for  that  he  burghtriimdy  hr<>kc  open  a  church  in 
the  night  in  order  to  destroy  and  steal  the  goods  of  the  parishioners 
therein  being,  but  took  nothing  away.  And  Huomei.ey,  J.,  held  clearly 
that  this  is  burglary  ;  but  he  said  that  it  ought  to  be  /iroke  and  entered. 

'  In  Com  V.  Clievalier,  7  Dane  Abr.  134  (1794)  the  jury  found  that  a  breaicv;.g 
was  not  in  the  nipht  which  took  place  at  ei^litcen  minute.*  after  two  o'clock  on  tlie 
morning  of  June  27th. 

Mass.  Pub.  Stats,  ch.  214,  .sect.  1.5.  When  an  offence  is  alleged  to  have  l.een  com- 
mitted in  the  night-time,  the  time  called  night-time  .sh.ill  »>e  deemed  to  Ik-  the  liioe 
hetween  one  hour  after  the  sun-setting  -ju  one  day  and  on©  hour  before  euu-ri»ing  on 
the  next  day. 


782  ANONYMOtrS,  [CIIAP.  XVIL 


RESOLUTION. 
All  the  Judges  of  England,     1584. 

[Reported  Anderson,  114.] 

All  the  justices  assembled  at  Serjeants'  Inn  agreed  that  if  one  break 
the  glass  in  a  window  in  the  dwelling-house  of  any  one,  and  there  witli 
hooks  draw  carpets  out,  and  feloniousl}-  steal  them,  it  is  burglary  if  ii 
be  done  at  night,  though  the  man  who  does  it  do  not  enter  or  break  tlio 
house  otherwise  ;  and  this  case  was  put  for  a  purpose,  in  order  that  the 
justices  of  Assize  in  the  count}'  of  Warwick  might  know  the  law  before 
the  Assizes,  where  this  case  was  to  come  in  question  for  an  offence  com- 
mitted at  Erdeburgh  in  said  county.  At  this  time  the  following  case 
was  also  put  by  the  said  justices,  that  thieves  in  the  night  come  to  a 
dwelling,  and  some  one  within  comes  and  opens  the  door,  and  when  it  is 
open,  one  of  the  thieves  intending  to  kill  the  man  shoots  at  him  with  a 
gun,  the  bullet  from  which  misses  the  man  and  breaks  the  wall  on  the 
other  side  of  the  house.  And  it  was  agreed  by  all  that  this  is  no  burg- 
lar}' ;  and  this  also  was  in  order  to  know  the  law  in  this  case,  which 
happened  in  the  county  of  Derby  where  they  were  also  justices.  And 
as  bearing  upon  these  cases  an  actual  case  was  put,  which  was  this, 
scil. :  In  the  night  one  who  intended  to  kill  another  in  a  house  broke  a 
hole  in  the  wall  of  the  dwelling,  and  perceiving  where  the  person  was, 
shot  at  him  through  the  hole  with  a  gun  and  missed  the  person,  which 
was  adjudged  as  burglary :  so  where  one  broke  a  hole  in  the  wall  and 
seeing  a  man  with  a  purse  of  money  hanging  from  his  girdle  coming  by 
the  hole,  snatched  at  the  purse  and  took  it,  this  too  was  agreed  to  be 
burglary ;  which  happened  in  Essex.  And  then  it  was  remembered 
that  one  went  to  the  window  of  Mr.  Cave's  study  in  the  county  of 
Leicester,  and  perceiving  a  casket  with  money  in  it,  drew  it  to  the 
window  and  took  money  out  of  it,  and  for  this  he  was  hanged  in 
the  county  of  Leicester.  For  in  all  these  cases  of  burglary  there  is  a 
breaking  of  the  house  to  commit  felony  in  the  night ;  which  makes  the 
offence  burglary.  But  in  the  preceding  case  of  shooting  with  the  gun 
into  the  door  and  breaking  the  wall  with  the  bullet,  it  is  not  a  break- 
ing of  the  house  with  intent  to  commit  felony ;  wherefore  it  is  not 


burglary. 


ANONYMOUS. 
Crown  Case  Reserved.     1594. 

[Reported  Moore,  660,   pi.  903.] 

It  was  resolved  by   all   the  justices   at  Serjeants'  Inn,   that  the 
breaking  of  a  dwelling-house  at  night  with  intent  to  rob  or  kill  a  man  is 


SECT.  I.]  LE   MOrrs    CASE. 


783 


burglary,  though  no  one  be  in  the  house.  And  if  one  ha,  iwu  d vvelh..-- 
houses  where  lie  lives  in  turn,  if  a  thief  break  at  night  the  houHc  from 
which  he  IS  absent  it  is  burglar3-,  and  all  the  old  precedeuUs  of  indin- 
ments  for  burglary  are  noctnnter  et  fdonice,  with.n.t  alltgutiun  of  an\ 
person  put  in  fear  of  death.  And  the  reason  of  the  old  precedenU 
varying  Iroiu  those  of  modern  times  I)y  mentioning  that  one  was  in  fear 
of  death  IS  because  the  Statute  23  II.  H  takes  away  clergy  froui  a 
burglar  where  any  one  is  put  in  fear  of  death,  but  not  otherwii,e 


REX  V.  FIDLING. 
King's  Bench.     1G07. 

[-Ua;^UA•t•^/-l^'] 

One  Fidling  was  indicted  for  burglary  ;  and  the  indictment  was  lh.it 
he  the  mansion  house  of  Afelonie  fn'(/U,  and  him  and  all  his  familv 
put  in  terror  of  their  lives,  with  intention  the  said  A  de  bonis  et  pecu- 
niis  spoliandis.  Exception  was  taken  to  this  indictment,  because  it 
said  ouXyfregit  and  not  intravit,  according  to  the  opinion  of  Hroinoley 
in  1  Mary,  Dy.  fo.  99,  pi.  58.  But  per  Curiam;  The  iiidiclment  is 
good  enough  ;  for  if  he  l)reaks  the  house  feloniously  with  intent  ut 
supra  it  is  burglary,  although  he  does  not  enter. 

It  was  also  objected  that  intentione  ad  spolimidum  shall  be  taken 
only  as  a  trespass ;  but  /»er  Curiam,  felony  ad  sjwliaiidutn  shall  be 
taken  to  be  a  felony. 


LE  MOTT'S  CASE. 
About  1650. 

[Reported  Keli/ii(j,  42.] 

At  the  Sessions  T  inquired  of  Le  Mott's  Case,  which  was  adjudged 
in  the  time  of  the  late  troubles,  and  my  Brother  Wyld  told  me  that  the 
case  was  this  :  That  thieves  came  with  intent  to  rob  him,  and  finding 
the  door  locked  up,  pretended  they  came  to  speak  with  him,  and  there- 
upon a  maid-servant  opened  the  door,  and  they  came  in  and  robbed 
him,  and  this  being  in  the  night-time,  this  was  adjudged  burglary  and 
the  persons  hanged  ;  for  their  intention  being  to  rob,  and  getting  the 
door  open  by  a  false  pretence,  this  was  / »  fraudrm  Jegis,  and  so  they 
were  guilty  of  burglary  though  they  did  not  actually  break  the  house, 
for  this  was  in  law  an  actual  breaking,  being  obtained  by  fraud  to  have 

^  This  case,  though  never  before  printed,  is  cited  in  Vaillant's  Dyer,  99  nott  —  Ed. 


784 


REX   V.    LYONS. 


[chap.  XVI 1. 


the  door  opened ;  as  if  men  pretend  a  warrant  to  a  constable,  and 
bring  him  along  with  them,  and  under  that  pretence  rob  the  house,  if  it 
be  in  the  night  this  is  burglar^-.' 


REX   V.    GRAY. 
Old  Bailey.     1722. 

[Reported  1  Strange,  481.] 

One  of  the  servants  in  the  house  opened  his  lad3''s  chamber  door 
(which  was  fastened  with  a  brass  bolt)  with  design  to  commit  a  rape ; 
and  King,  C.  J.,  ruled  it  to  be  burglar}-,  and  the  defendant  was  con- 
victed and  transported. 


REX   V.   LYONS. 
Crown  Case  Reserved.     1778. 

[Reported  Leach  {4f.hed.),  185.] 

At  the  Old  Bailey*  in  Januar}'  Session,  1778,  Lj'on  Lyons  and 
Thomas  Miller  were  tried  before  Mr.  Serjeant  Ghmn,  Recorder,  for 
burglariously  breaking  and  entering  the  dwelling-house  of  Edward 
Smith,  with  intention  to  commit  a  felon}'. 

The  jury  found  a  general  verdict  guilty,  subject  to  the  opinion  of  the 
judges  upon  the  following  case :  — 

Mr.  Smith  had  some  time  before  purchased  this  house  with  an  inten- 
tion to  reside  in  it,  and  had  moved  some  of  his  effects  to  the  value  of 
about  ten  pounds,  into  the  house  ;  but  at  the  time  the  offence  was  sup- 
posed to  have  been  committed,  it  was  under  the  care  of  a  carpenter, 
for  the  purpose  of  being  repaired ;  and  Mr.  Smith  had  not  himself 
entered  into  possession  of  any  part  of  it,  nor  did  an}'  part  of  his 
family,  or  any  person  whatever  sleep  therein.  The  prisoners  broke  and 
entered  this  house  in  the  night-time,  with  an  intention  to  steal ;  but 
whether  it  can  in  construction  of  law  be  considered  the  dwelling-house 
of  Edward  Smith  they  submitted,  &c. 

This  case  was  made  upon  the  objection  of  Mr.  Howarth^  the  pris- 
oner's Counsel ;  and  a  copy  of  it  was  delivered  to  each  of  the  judges 
named  in  the  margin.'^ 

1  Ace.  Farr's  Case,  Kel.  43  ;  Com.  v.  Lowrey,  158  Mass.  18,  32  N.  E.  940;  Johnston 
V.  Com.,  85  Pa.  54.  —Ed. 

2  Lord  Mansfield,  De  Grey,  C.  J.,  Skinner,  C.  B.,  Blackstone,  Ashhdrst, 
Nares,  Godld,  Willes,  J  J.,  Perryn,  Hotham,  Etre,  BB. 


SECT.  I.]  BEX    V.    DAVIK.S. 


785 


The  Judges  in  Easter  Term,  1778,  were  of  opinu,,.,  Thai  u  house  so 
situated  could  not  be  considered  as  a  dwelling-bouhc,  it  heiug  com- 
pletely uninhabited  ;  and  therel'oie  there  could  be  no  burglary. 

The  judgment  against  the  prisoners  wtis  accordingly  arrested. 


JOHNSON'S  CASE. 
Cro>vn  Case  Reserved.     1786. 

[Reported  2  East  P.  C.  488. J 

Though  if  a  thief  enter  a  dwelliiig-honse  in  the  night-time  through 
the  outer  door  being  left  oi)en,  or  by  an  open  window  ;  vet  if  when 
witliin  the  house  he  turn  the  key  of  or  unlatch  a  chamber-door  wiiU 
intent  to  commit  felony  this  is  burglary  :  and  so  it  was  adjudged  on  a 
special  verdict  at  Newgate,  1672.  The  same  was  lately  ruled  in 
Johnson's  Case  by  all  the  judges ;  where  the  prisoner  entered  at  a 
back  door  of  the  house  of  William  Hughes  at  Newington  in  Surrey, 
which  had  been  left  open  by  the  family  ;  and  afterwards  broke  open  au 
inner  door,  and  stole  goods  out  of  the  room  ;  and  then  unbolted  the 
street  door  on  the  inside  and  went  out. 


REX  V.  DAVIES. 
Crown  Case  Reserved,     1800. 

[Reported   Leach    (4th  ed.),  876] 

At  the  Old  Bailey  in  June  Session,  1800,  John  Davies  was  indicted 
before  Mr.  Baron  Chambre,  present  Mr.  Justice  Grose  and  the 
Recorder,  for  stealing  a  quantity  of  pans,  kettles,  candlesticks, 
&c.,  above  the  value  of  40.s'.,  the  propert}*  of  Thomas  Pearce  in  hi.s 
dwelling-house. 

The  larcen}'  was  clearly  proved,  but  it  appeared  that  Mr.  Pearce  was 
a  brewer  in  considerable  business  living  in  Mill)ank  Street,  and  owner 
of  the  "  Star  and  Garter"  public  house  in  Palace-yard,  in  which  house 
the  larceny  was  committed.  The  house  was  at  this  time  shut  up.  nnd 
in  the  da3--time  totally  uninhabited  ;  but  ISIr.  Pearce's  man  was  put  to 
sleep  in  it  at  night  for  the  protectioii  of  the  goods  that  were  in  the 
house,  until  some  other  publican  should  take  possession  of  it.  It  had 
remained  in  this  state  about  six  weeks  previous  to  the  robbery,  (hiring 
which  time  it  had  been  let  to  a  publican  who  h.ad  not  taken  pos.seswion 
of  it.  There  were  at  this  time  in  tlie  house  sixteen  or  sevt-ntoen  l>eds, 
and  a  variety  of  chairs,  tables,  and  other  articles  of  furniture,  which 

60 


786  COMMONWEALTH   V.    STEWARD.  [CHAP.  XWLL 

Mr.  Pearce  had  purchased  of  the  former  tenant,  with  a  view  to  accom- 
modate the  person  to  whom  he  might  let  it,  but  with  no  intention  of 
residing  in  the  house  himself,  either  personally  or  by  means  of  any  of 
his  servants. 

The  counsel  for  the  prisoner  submitted  to  the  court  that  this  house 
could  not  be  considered  as  the  dwelling-house  of  Pearce,  and  that 
therefore  the  prisoner  ought  to  be  acquitted  of  the  capital  part  of  the 
offence,  and  cited  the  cases  stated  in  the  margin.^  The  case,  however, 
was  left  with  the  jury,  and  they  found  the  prisoner  guilty  of  the  whole 
charge,  but  the  point  was  saved  for  the  consideration  of  the  judges. 

The  Judges,  hi  Trinity  Term,  1800,  were  of  opinion  that  as  it 
clearly  appeared  by  the  evidence  that  Mr.  Pearce  had  no  intention 
whatever  to  reside  in  this  house  either  by  himself  or  his  servants,  it 
could  not  in  contemplation  of  law  be  considered  as  his  dwelHng-house, 
and  that  not  being  such  a  dwelling-house  wherein  burglary  might  be 
committed,  the  capital  part  of  the  charge  under  12  Ann.  c.  7,  was 
done  awa}'. 

The  prisoner  accordingly  received  his  Majesty's  pardon  on  condition 
of  transportation. 


COMMONWEALTH   v.    STEWARD. 
Supreme  Judicial  Court  of  Massachusetts.     1789 

[Reported  7  Dane's  Abr.  136.] 

Steward  was  indicted  for  burglar}-  in  the  house  of  John  Fisk.  The 
court  held  that  it  is  a  burglarious  breaking  to  open  a  door  when  latched 
and  shut,  or  to  push  up  a  window  when  shut  down,  though  not 
fastened ;  these  being  in  their  shut  position.  But  if  a  window  be  a 
little  pushed  up,  or  a  door  a  little  opened,  &c.,  so  that  one  passing  b}' 
may  see  the  owner  has  not  properl}'  shut  his  house,  it  is  not  a  burglari- 
ous breaking  to  enter,  though  a  further  pushing  up  of  the  window  or 
opening  of  the  door  be  necessary  for  the  person  to  enter ;  but  that  it  is 
not  customary  for  men,  nor  necessary  always,  to  have  all  the  glass  of 
their  windows  whole,  or  the  joints  of  their  doors,  windows,  &c.,  exact.'^ 

Attorney- General,  for  the  State. 

Jiradbury,  for  the  defendant. 

1  Harris's  Case,  Leach,  701  ;  Thompson's  Case,  Leach,  771 ;  Fuller's  Case,  Leach, 
186  71. 
3  Ace.  Rex  V.  March,  1  Moo.  C.  C.  178.    See  Rex  v.  Lewis,  2  C.  &  P.  628.  — Ed. 


SJiCT.  I.j  COMMONWEALTH   V.    aiKPllENSON. 


787 


COMMONWEALTH   v.   STEPHENSON. 
Supreme  Judicial  Couut  ok  MAssACHtSErrs.     1829. 

[Rejiorted  8  Ptckenny,  354. | 

INDICTMEKT  for  bu.glury.  The  evidence  as  to  breaking  wu«,  U.at  in 
the  evening  ot  May  22  the  witness  fasteaeU  the  outer  door  of  the  dwell- 
ing-liouse  by  turning  a  button  down  upon  the  iuteh,  and  that  about  d-iv- 
break  in  the  morning  he  found  the  door  open,  antl  also  that  the  network 
ot  the  buttery  window  had  been  cut  away  and  torn  down.  The  nt-llin-' 
was  made  of  double  twine,  and  was  fastened  bv  nailing  it  on  each  ^idt" 
and  at  the  top  and  bottom  of  the  window,  for  the  purpose  of  lettin-  ,n 
the  air  and  keeping  out  cats  and  othe-r  small  animals.  Within  the  net- 
work there  was  a  glass  window,  which  had  not  been  shut.  Putnam  J 
instructed  the  jury  that  if  the  defendants  l>roke,  cut,  or  tore  awav  the 
net  so  fastened,  it  was  in  law  a  breaking  of  ihe  dwelling-house.  'The 
defendants,  being  found  guilty,  moved  for  a  new  trial  because  the  fore- 
going instruction  was  w^ong. 

Bates  and  G.  Bliss,  Junior,  for  the  defendants.  Entering  by  an 
open  window  will  not  sustain  an  indictment  for  burglary  :  2  Huss.  OOl  ; 

1  Hawk.  P.  C.  c.  38,  §§  4,  5  ;  4  Bl.  Com.  22G;  Cation's  Case,  cited  in 

2  Russ.  903  ;  and  the  circumstance  that  a  netting  was  stretched  across 
the  window  in  the  present  case  is  immaterial,  as  this  netting  was  put 
up  only  as  a  security  against  the  entry  of  small  animals.  The  window- 
was  the  natural  protection  against  an  entry  by  man.  To  constitute  a 
breaking,  the  thing  broken  must  be  a  part  of  the  house.  1  Hawk.  P.  C. 
c.  38,  §§4,5;  Foster,  108  ;  1  Hale,  552 ;  2  Stark.  Ev.  320.  This  net^ 
ting  was  not  even  a  fixture.  Beck  i\  Rebow,  1  P.  Wms.  94  ;  Gale  v. 
Ward,  14  Mass.  356;  Whiting  v.  Brastow,  4  Pick.  310;  Com.  v. 
Trimmer,  1  Mass.  476.^ 

Daris  (Solicitor-General)  cited  3  Chit.  Crim.  Law,  1093;  1  Hale, 
552  ;  East  P.  C.  487;  4  Bl.  Com.  226. 

Parker,  C.  J.,  delivered  the  opinion  of  the  court.  The  question  in 
this  case  is,  whether  there  was  a  breaking  or  not.  The  lifting  a  latch 
and  opening  the  door,  though  not  bolted  or  locked  ;  the  shoving  up  a 
window,  though  not  fastened  ;  the  getting  down  a  chimney,  and  vari- 
ous other  acts  done  to  effect  an  entry,  are  held  to  be  a  breaking.  The 
otTence  consists  in  violating  the  common  security  of  a  dwelling-house 
in  the  night-time,  for  the  purpose  of  committing  a  felony.  It  makes  no 
difference  whether  the  door  is  barred  and  liolled,  or  the  window  seeured. 
or  not;  it  is  enough  that  the  house  is  secured  in  the  ordinary  way  ;  so 
that  b}'  the  carelessness  of  the  owner  in  leaving  the  door  or  window 
open,  the  j)arty  accused  of  burglaiy  be  not  tempted  to  enter.  .*^liuttins{ 
the  window  blinds  and  leaving  the  windows  open  for  air  is  a  commou 

1  Part  of  the  argument  is  omitted. 


788  MASON   V.    PEOPLE.  [CHAP.  XVII. 

mode  of  closing  a  house  in  the  warm  season  ;  if  the  blinds  are  forced, 
it  is  a  breaking. 

The  objection  is,  that  the  lattice-work  of  the  dairy  window  was  of 
twine  only.  Suppose  it  were  of  wire  or  thin  slats  of  wood,  would  there 
be  any  difference  ?  This  network  was  nailed  down  on  all  sides  ;  it  was 
torn  away  by  the  defendants,  and  they  entered  the  breach.  This  is 
quite  suflacient  to  constitute  a  burglarious  breaking  and  entry. 

Motion  for  a  new  trial  overruled. 


MASON  V.  PEOPLE. 
Court  of  Appeals  of  New  York.     1863. 

[Reported  26  New  York,  200.] 

Error  to  the  Supreme  Court.  The  plaintiff  in  error  was  indicted  in 
the  New  York  General  Sessions.  The  first  count  charged  him  with 
feloniously  and  burglariously  breaking  and  entering,  in  the  daytime, 
the  dwelling-house  of  Christopher  Thomas,  "  with  intent  to  commit 
some  crime  therein,"  but  not  specifying  what  crime.  The  second  count 
charged  a  larceny,  in  the  dwelling-house  before-mentioned,  of  a  gold 
ring,  the  propert}'  of  Minna  Thomas.  The  evidence  was  that  Thomas 
and  his  wife  Minna  occupied  three  rooms  in  what  is  known  as  a  tene- 
ment house,  for  which  they  paid  rent  monthly.  Three  other  families 
occupied  different  apartments  of  the  same  house,  one  of  these  families 
having  rooms  on  the  same  floor  with  Thomas.  There  was  one  common 
door  of  entrance  into  the  house,  which  opened  from  the  street  into  the 
first  floor  or  storj',  through  which  all  the  tenants  passed  to  their  respec- 
tive apartments.  When  the  offence  was  committed  the  front  door  was 
open,  the  prisoner  breaking  only  the  door  of  Mrs.  Thomas'  room, 
which  she  had  left  locked.  The  prisoner's  counsel  asked  the  court 
to  charge  that  breaking  an  inner  door  in  the  daytime  with  intent  to 
steal  is  not  a  burglary.  He  maintained  that  the  outer  door  of  the 
house  was  the  outer  door  of  every  tenant  living  within  ;  that  the  crim- 
inal breaking  of  that  door  would  have  been  a  burglary  of  the  dwelling- 
house  of  the  tenant  whose  property  the  offender  intended  to  steal ;  and 
that,  as  a  consequence,  the  breaking  of  the  inner  door  was  not,  because 
a  double  burglary  could  not  be  committed  by  breaking  first  the  street 
door  and  then  the  inner.  The  court  refused  to  charge  as  requested, 
and  the  prisoner  took  an  exception.  He  was  convicted  of  burglar}-  in 
the  third  degree,  and  the  judgment  having  been  affirmed  by  the  Supreme 
Court  in  the  first  district,  he  appealed  to  this  court. 

S.  H.  Stewart,  for  the  plaintiff  in  error. 

jA..  Oakey  Hall^  for  the  People. 


S'^C'^-  ^0  QUINN   V.   PEuPLK.  799 

Emott,  J.i  As  to  the  objection  taken  at  the  trial  that  hnr-lary  could 
not  be  committed  by  breaking  and  entering  apartments  in  what  is 
known  in  cities  as  a  tenement  house,  a  building  occupied  separately  l.v 
several  families,  each  having  distinct  apartments  opening  into  a  com- 
mon hall,  and  thus  communicating  with  the  street,  it  has,  in  mv  judg- 
ment, no  foundation.  Any  and  every  settled  habitation  of  a  man  and  1.7s 
family  is  his  house  or  his  mansion,  in  respect  to  its  burglarious  .-ntrv 
It  was  so  held  before  Lord  Hale's  time  as  to  chambers  in  colleges  and 
mns  of  court,  and  even  as  to  a  chamber  hired  by  A.  in  the  house  of  li 
for  lodging  for  a  specified  time.  Hale  PI.  Cor.,  I.,  p.  556.  Serjeant 
Hawkins  (Cr.  Law,  vol.  i.  p.  163)  gives  the  same  rule  as  to  tenement 
or  lodging  houses,  except  that  he  seems  to  suppose  that  a  dilTerence 
might  arise  when  the  owner  of  the  house  himself  lived  in  it.  But  such 
an  exception  would  only  lie  where  the  other  inmates  were  lodgers  with 
the  owner,  and  not  proprietors  of  distinct  tenements  8eparat°elv  hired 
and  occupied  for  a  longer  or  shorter  time,  with  access  either  seimrately 
or  jointly  to  the  street.  Wherever  a  building  is  severed  by  lease  into 
distinct  habitations,  each  becomes  the  mansion  or  dwelling-house  of 
the  lessee  thereof,  and  is  entitled  to  all  the  privileges  of  an ''individual 
dwelling.  The  case  of  the  People  v.  Bush,  3  Park.  Cr.  R.  556,  was 
precisely  like  the  one  at  bar,  and  it  was  there  held  by  three  judges  of 
the  Supreme  Court,  of  whom  the  one  pronouncing  the  opinion  was  a 
learned  and  experienced  criminal  lawyer,  that  a  room  or  rooms  in  a 
tenement  house,  rented  to  separate  families  with  a  door  and  entry  com- 
mon to  all,  constituted  each  the  dwelling-house  of  the  particular  occu- 
pant in  the  sense  of  the  law.  Such  we  understand  to  be  the  well-settled 
rule. 

The  judgment  of  the  Supreme  Court  aflirming  that  of  the  Court  of 
Sessions  was  right,  and  must  be  affirmed  in  this  court. 

Judgment  affirmed. 


QUIIS^N  V.    PEOPLE. 
Court  of  Appeals  of  New  York.     1878. 

[Reported  71  New  York,  561.] 

FoLGER,  J.^  The  plaintiff  in  error  was  indicted  of  the  crime  of  burg- 
lary in  the  first  degree,  under  the  section  of  the  Revised  Statutes 
defining  that  crime.  2  R.  S.  p.  G68,  §  10,  subd.  1.  The  crime,  as 
there  defined,  consists  in  breaking  into,  and  entering  in  the  night-time, 
in  the  manner  there  specified,  the  dwelling-house  of  another,  in  which 
there  is  at  the  time  some  human  being,  with  the  intent  to  commit  some 
crime  therein.   The  evidence  given  upon  the  trial  showed  clearly  enough 

1  Part  of  the  opinion  is  omitted. 


790  QUINN   V.    PEOfLE.  [chap.  XVII. 

the  breaking  and  entering,  and  the  criminal  intent.  The  questions 
mooted  in  this  court  are,  whetlier  it  is  legally  proper,  in  an  indictment 
for  buro-lary  of  a  dwelling-house,  to  aver  the  ownership  of  the  building 
in  a  partnership,  and  whether  the  proof  showed  that  the  room  entered 
was  a  dwellinor-house  within  the  intent  of  the  statute.  As  to  the  first 
question  :  The  indictment  averred  the  breaking  and  entering  into  the 
dwelling-house  of  Frederick  Kohnsen  and  John  F.  Lubkin,  being  co- 
partners in  business  under  the  firm-name  and  style  of  Kohnsen  & 
Lubkin.  The  authorities  are  numerous  enough  and  clear,  that  the 
ownership  of  the  dwelling-house  may  be  laid  in  the  indictment  to  be  in 
the  members  of  a  copartnership,  when  the  facts  of  the  case  warrant  it. 
In  Rex  V.  Athea,  R.  &  M.  C.  C  R.  329,  the  indictment  averred  the 
stealing  in  the  dwelling-house  of  Hailing  and  others.  It  appeared  that 
Hailing,  Pierce  &  Stone  carried  on  business  on  the  premises  in  which 
the  offence  was  committed.  Pierce  lived  in  the  house,  which  was  the 
joint  property  of  the  firm.  The  other  partners  resided  elsewhere.  It 
was  held,  upon  a  case  reserved,  that  the  dwelling-house  was  properly 
laid  as  that  of  all  the  partners.  See,  also,  Rex  v.  Stockton  & 
Edwards,  2  Taunt.  339  ;  2  Leach,  1015  ;  s.  c.  sub  nom.  Rex  v.  Stock 
et  al,  Russ.  &  Ry.,  185 ;  Rex  v.  Hawkins,  Foster's  Cr.  Law,  38 ;  Rex 
V.  Jenkins,  Russ.  &  Ry.  244  ;  Saxton's  Case,  2  Harr.  533. 

The  facts  of  the  case  in  hand  are  meagrely  presented  upon  the  error- 
book,  but  we  gather  from  it,  and  from  the  concessions  made  upon  the 
points  and  on  the  oral  ai-gument,  that  Kohnsen  and  Lubkin,  the  per- 
sons named  in  the  indictment,  were  copartners  in  trade ;  and,  as  such, 
held  and  occupied  the  buildings,  into  one  room  of  which  the  burglarious 
entry  was  made ;  that  the  lower  or  first  stories  of  the  buildings  were 
used  for  the  purposes  of  their  business,  and  opened  into  each  other ; 
that  in  the  upper  rooms  one  only  of  the  partners  and  some  other  per- 
sons lived,  and  were  present  on  the  night  of  the  burglary.  This  state 
of  facts  is  in  accord  with  those  presented  in  the  cases  above  cited.  We 
are  of  opinion  that  the  first  question  presented  must  be  resolved  against 
the  plaintiff  in  error.  The  ownership  of  the  buildings  was  properly  laid 
by  the  indictment  in  Kohnsen  &  Lubkin.  The  ownership  remained  with 
them  ;  the  actual  possession  of  the  portions  of  the  buildings  used  for 
business  was  in  them,  and  the  possession  of  part  of  the  portion  of  the 
buildings  used  to  live  in  was  in  them,  by  the  actual  possession  and 
occupation  of  that  part  by  Kohnsen.  They  had  not  given  such  an 
interest  to  other  persons  in  the  whole  or  in  parts  of  the  buildings  as  to 
constitute  an  ownership  in  such  other  persons.  2  East,  P.  C.  C.  15, 
§  18,  p.  502.  The  cases  are  somewhat  in  conflict  upon  this  point,  it 
is  true,  and  are  not  easily  reconciled  or  distinguished ;  see  Rex  v. 
Margetts,  et  al.^  2  Leach,  930  ;  but  it  is  plain  that  here  the  partners,  as 
such,  had  the  ultimate  control  and  right  of  possession  of  the  whole 
buildings,  and  the  actual  possession  of  the  shop  entered,  and  of  the 
sleeping-room  above  it,  thus  bringing  the  case  within  several  decisions. 

As  to  the  second  question :  In  addition  to  the  facts  alread}'  stated. 


SKCT.  I.]  QUINX   V.   PEOrLK 


T91 


it  is  needed  onh-  to  note  that  there  was  an  iiilc-nial  communication 
between  the  two  stores,  in  the  lower  stories  of  the  buildings,  but  none 
between  thera  and  the  upi^er  rooms,  in  which  one  of  the  partners 
and  other  persons  lived.  The  room  into  wliich  liie  pluintiff  in  error 
broke  was  used  for  business  purposes  only,  but  it  was  within  the  same 
four  outer  walls,  and  under  the  same  roof  as  the  other  rooms  of  the 
buildings.  To  pass  from  the  rooms  used  for  business  purposes  to  the 
rooms  used  for  living  in,  it  was  necessary  to  go  out  of  doors  into  a 
yard  fenced  in,  and  from  thence  up  stairs.  The  unlawful  entering  of 
the  plaintiff  in  error  was  into  one  of  the  lower  rooms  used  for  trade, 
and  into  that  only.  The  point  made  is,  that  as  there  was  no  internnl 
communication  from  that  room  to  the  rooms  used  ff)r  dwellings,  and  as 
that  room  was  not  necessary  for  the  dwelling-rooms,  there  was  not  a 
breaking  into  a  dwelling-house,  and  hence  the  act  was  not  burglary  in 
the  first  degree  as  defined  by  the  Revised  Statutes  as  cited  above.'  In 
considering  this  point,  I  will  first  say  that  the  definition  of  the  crime  of 
burglary  in  the  first  degree,  given  by  the  iJevised  Statutes,  does  not, 
so  far  as  this  question  is  concerned,  materially  ditler  from  the  defini- 
tion of  the  crime  of  burglary-  as  given  at  common  law,  to  wit,  ''  a 
breaking  and  entering  the  mansion-house  of  another  in  the  night,  with 
intent  to  commit  some  felony  within  the  same."  ...  2  Russ.  on  Cr. 
p.  1,  §  *  785.  It  will,  therefore,  throw  light  upon  this  question  to 
ascertain  what  buildings  or  rooms  were,  at  common  law,  held  to  be 
dwelling-houses  or  a  part  thereof,  so  as  to  be  the  subject  of  burglary. 
For,  so  far  as  the  Revised  Statutes  as  already  cited  are  concerned, 
what  was  a  dwelling-house  or  a  part  thereof  at  common  law,  must  also 
be  one  under  those  statutes.  Now,  at  common  law,  before  the  adoj)- 
tion  of  the  Revised  Statutes,  it  had  been  held  that  it  was  not  needfid 
that  there  should  be  an  internal  communication  between  the  room  or 
building  in  which  the  owner  dwelt,  if  the  two  rooms  or  buildings  were 
in  the  same  inclosure,  and  were  built  close  to  and  adjoining  each 
other.  Case  of  Gibson,  Mutton  &  Wiggs,  Leach's  Cr.  Cases,  32U  (case 
165),  recognized  in  The  People  v.  Parker,  4  Johns.  423.  In  the  case 
from  Leach,  there  was  a  shop  built  close  to  a  dwelling-house  in  which 
the  prosecutor  resided.  There  was  no  internal  communication  between 
them.  No  person  slept  in  the  shop.  The  only  door  to  it  was  in  the 
court-yard  before  the  house  and  shop,  which  yard  was  inclosed  by  a 
brick  wall,  including  them  within  it,  with  a  gate  in  the  wall  serving 
for  ingress  to  them.  The  breaking  and  entering  wa.s  into  the  shop. 
Objection  was  taken  that  it  could  not  be  considered  the  dwelling-house 
of  the  prosecutor,  and  the  case  was  reserved  for  the  consideration  of 
the  twelve  judges.  They  were  all  of  the  opinion  that  the  shop  wa.s  to 
be  considered  a  part  of  the  dwelling-house,  being  within  the  same 
building  and  the  same  roof,  though  there  was  only  one  door  to  the 
shop,  that  from  the  outside,  and  that  the  prisoners  had  been  duly  con- 
victed of  burglary  in  a  dwelling-house.  The  case  in  Johnson's  Ro|K)rt5, 
supra,  is  also  significant,  from  the  facts  relicil  ui)on  there  to  difitin- 


792  QUINN   V.    PEOPLE.  [CHAP.  XVII. 

guish  it  from  the  case  in  Leach,  supra.  Those  facts  were  that  the  shop 
entered,  in  which  no  one  slept,  though  on  the  same  lot  with  the  dwell- 
ing-house, was  twenty  feet  from  it,  not  inclosed  by  the  same  fence,  nor 
connected  by  a  fence,  and  both  open  to  a  street.  The  court  said  that 
they  were  not  within  the  same  curtilage,  as  there  was  no  fence  or  yard 
Inclosing  both  so  as  to  bring  them  within  one  inclosure,  therefore,  the 
case  was  within  that  of  The  King  v.  Garland,  1  Leach  Cr.  Cas.  130 
(or  171),  case  77.  It  has  been  urged,  in  the  consideration  of  the  case 
in  hand,  that  though  the  common  law  did  go  farther  than  the  cases 
above  cited,  and  did  deem  all  out-houses,  when  the}'  were  within  the 
same  inclosure  as  the  dwelling-house,  a  part  of  it,  yet  that  they  must, 
to  be  so  held,  be  buildings  or  rooms  the  use  of  which  subserved  a 
domestic  purpose,  and  were  thus  essential  or  convenient  for  the  enjoy- 
ment of  the  dwelling-house  as  such.  Gibson's  case,  supra,  would 
alone  dispose  of  that.  The  building  there  entered  was  not  only  of 
itself  a  shop  for  trade,  but  it  was  in  the  use  and  occupation  of  a  per- 
son other  than  the  owner  of  the  dwelling-house.  The  books  have  many 
cases  to  the  same  end.  Rex  v.  Gibbons  &  Kew  Russ.  &  Ry.  442, 
the  case  of  a  shop.  Robertson's  case,  4  Citj'  Hall  Rec.  63,  also  a 
shop  with  no  internal  communication  with  the  dwelling-house.  Rex  v. 
Stock  et  aL,  Russ.  &  Ry.  185,  a  counting-room  of  bankers,  ^x  parte 
Vincent,  26  Ala.  145,  one  room  in  a  house  used  as  a  wareroom  for 
goods.  Rex  V.  Witt,  Ry.  &  M.  248,  an  office  for  business,  below 
lodging  rooms.  Indeed,  the  essence  of  the  crime  of  burglarj-  at  com- 
mon law  is  the  midnight  terror  excited,  and  the  liability  created  by  it 
of  danger  to  human  life,  growing  out  of  the  attempt  to  defend  property 
from  depredation.  It  is  plain  that  both  of  these  may  arise,  when  the 
place  entered  is  in  close  contiguity  with  the  place  of  the  owner's  repose, 
though  the  former  has  no  relation  to  the  latter  by  reason  of  domestic 
use  or  adaptation.  Besides,  the  cases  have  disregarded  the  fact  of 
domestic  use,  necessit}',  or  convenience,  and  have  found  the  criterion  in 
the  physical  or  legal  severance  of  the  two  departments  or  buildings, 
Rex  v.  Jenkins,  Russ.  &  Ry.  244  ;  Rex  v.  Westwood,  id.  495  ;  where 
the  separation  of  the  buildings  was  by  a  narrow  way,  both  of  them 
being  used  for  the  same  family  domestic  purposes.  It  is  not  to  be 
denied  that  there  are  some  cases  which  do  put  just  the  difference 
above  noted,  as  now  urged  for  the  plaintiff  in  error.  State  v.  Lang- 
ford,  1  Dev.  253;  State  v.  Jenkins,  5  Jones,  430;  State  v.  Br3'ani; 
Ginns,  1  Nott  &  McCord,  583.  Though,  in  the  case  last  cited,  it  is 
conceded  that  if  a  store  is  entered,  which  is  a  part  of  a  dwelling-house, 
by  being  under  the  same  roof,  the  crime  is  committed ;  and  it  must  be 
so,  if  it  is  the  circumstance  of  midnight  terror  in  breaking  open  a 
dwelling  house,  which  is  a  chief  ingredient  of  the  crime  of  burglary ; 
and  it  is  for  that  reason  that  barns  and  other  oul^houses,  if  in  proxim- 
ity to  the  mansion-house,  are  deemed  quasi  dwelling-houses,  and  enti- 
tled to  the  same  protection.  State  v.  Brooks,  4  Conn.  446-449.  Coke 
(3  Inst.  64)  is  cited  to  show  that  only  those  buildings  or  places,  which 


SECT.  I.]  QUINN   V.    PEOPLE. 


'03 


in  their  nature  and  recognized  use  are  intended  for  the  domestic  com- 
fort and  convenience  of  the  owner,  may  be  tlic  subject  of  burglary  at 
common  law  ;  but  in  tlie  same  book  and  at  the  same  page  the°  author 
also  says  :  "  But  a  shop  wherein  any  person  doth  co7iver°e" —  that  is, 
be  employed  or  engaged  with  ;  Richardson's  Die,  tw  uoce  —  "  being  a 
parcell  of  a  mansion-house,  or  not  parcell,  is  taken  for  a  mansion- 
house."  So  Hale  is  cited  (vol.  1,  P.  C.  558) ;  and  it  is  there  said  that, 
"  to  this  day  it  is  holden  no  burglary  to  break  open  such  a  shop:'  Hut 
what  does  he  mean  by  that  phrase  ?  That  appears  from  the  authority 
which  he  cites  (Button's  Reps.  33)  ;  where  it  was  held  no  burglary  to 
break  and  enter  a  shop,  held  by  one  as  a  tenant  in  the  house  of 
another,  in  which  the  tenant  worked  by  day,  but  neither  he  nor  tlic 
owner  slept  by  night.  And  the  reason  given  is  the  one  aboye  notice<l 
and  often  recognized  by  the  cases,  that  by  the  leasing  there  was  a 
severance  in  law  of  the  shop  from  the  dwelling-house.  But  Hale  also 
(vol.  1,  P.  C,  p.  557)  cites  as  law  the  passage  from  The  Institutes 
above  quoted.  Other  citations  from  text-books  arc  made  by  the  plain- 
tiff in  error ;  they  will  be  found  to  the  same  effect,  and  subject  to  tiie 
same  distinction  as  those  from  Coke  and  Hale.  And  see  Rex  v.  Gib- 
bons et  al.^  supra  ;  Rex  v.  Richard  Carroll,  1  Leach  Cr.  Cas.  272,  case 
115.  That  there  must  be  a  dwelling-house,  to  which  the  shop,  room, 
or  other  place  entered  belongs  as  a  part,  admits  of  no  doubt.  To  this 
effect,  and  no  more,  are  the  cases  cited  by  the  plaintiff  in  error,  of 
Rex  V.  Harris,  2  Leach,  701  ;  Rex  v.  Davies,  alias  Silk,  id.  876,  and 
the  like.  There  were  cases  which  went  further  than  anything  I  have 
asserted.  They  did  not  exact  that  the  building  entered  should  be  close 
to  or  adjoining  the  dwelling-house,  but  held  the  crime  committed,  if 
the  building  entered  was  within  the  same  fence  or  inclosure  as  the  build- 
ing slept  in.  And  the  dwelling-house  in  which  burglar}'  might  be  com- 
mitted -was  held  formerly  to  include  out-houses,  —  such  as  warehouses, 
barns,  stables,  cow-houses,  dairy-houses,  — though  not  under  the  same 
roof  or  joining  contiguous  to  the  house,  provided  they  were  parcel 
thereof.  1  Russ.  on  Cr.  *799,  and  authorities  cited.  Any  out-house 
within  the  curtilage,  or  same  common  fence  with  the  dwelling-house 
itself,  was  considered  to  be  parcel  of  it,  on  the  ground  that  the  capital 
house  protected  and  privileged  all  its  branches  and  appurtenants,  if 
within  the  curtilage  or  home-stall.  State  v.  Twitty,  1  Hayw.  (N.  C.) 
102  ;  State  v.  Wilson,  id.  242  ;  see  also  State  v.  Ginns,  1  Xott  & 
McCord,  583,  supra,  where  this  is  conceded  to  be  the  common  law. 
See  note  a  to  Garland's  case,  supra. 

It  seems  clear,  that  at  common  law  the  shop  which  the  plaintiff  in 
error  broke  into  would  have  been  held  a  part  of  a  dwelling-house. 

The  judgment  brought  up  for  review  should  be  affirmed. 

It  may  ward  off  misapprehension  if  it  is  said,  that  if  different  stores 
In  a  large  building,  some  parts  of  which  are  used  for  sleeping  apart- 
ments, are  rented  to  different  persons  for  purposes  of  trade  or  com- 
merce, or  mechanical  pursuit,  or  manufacturing,  another  rule  comes  la 


794  "WALKER   V.   STATE.  [CHAP.  XVII. 

For  illustration,  let  there  be  mentioned  the  Astor  House  in  New  York 
city.  The  rule  is,  that  a  part  of  a  dwelling-house  may  be  so  severed 
from  the  rest  of  it,  by  being  let  to  a  tenant,  as  to  be  no  longer  a  place 
in  which  burglar}'  in  the  first  degree  can  be  committed  ;  if  there  be  no 
internal  communication,  and  the  tenant  does  not  sleep  in  it.  Then  it 
is  not  parcel  of  the  dwelling-house  of  the  owner,  for  he  has  no  occupa- 
tion or  possession  of  it ;  nor  is  it  a  dwelling-house  of  the  tenant,  for  he 
does  not  lodge  there.  1  Hale  P.  C.  557,  558  ;  Kel.  83,  84  ;  4  Black. 
Com.  225,  226  ;  East  P.  C.  c.  15,  §  20,  p.  507. 

Allen,  Miller,  and  Earl,  JJ.,  concur ;  Rapallo  and  Andrews,  JJ., 
dissent ;  Chcrch,  C.  J.,  not  voting.  Judgment  affirmed. 


WALKER   V.    STATE. 
Supreme  Court  of  Alabama.     1879. 

[Reported  63  Ala.  49.] 

Brickell,  C.  J.  The  statute  (Code  of  1876,  §  4343)  provides,  that 
"  an}'  person  who,  either  in  the  night  or  day  time,  with  intent  to  steal, 
or  to  commit  a  felony,  breaks  into  and  enters  a  dwelling-house,  or  any 
building,  structure,  or  inclosure  within  the  curtilage  of  a  dwelling- 
house,  though  not  forming  a  part  thereof,  or  into  any  shop,  store, 
warehouse  or  other  building,  structure,  or  inclosure  in  which  any  goods, 
merchandise  or  other  valuable  thing  is  kept  for  use,  sale,  or  deposit, 
provided  such  structure,  other  than  a  shop,  store,  warehouse,  or  build- 
ing, is  specially  constructed  or  made  to  keep  such  goods,  merchandise, 
or  other  valuable  thing,  is  guilty  of  burglary,"  etc. 

The  defendant  was  indicted  for  breaking  into  and  entering  "  a  corn- 
crib  of  Noadiah  Woodruff  and  Robert  R.  Peeples,  a  building  in  which 
corn,  a  thing  of  value,  was  at  the  time  kept  for  use,  sale,  or  deposit, 
with  intent  to  steal,"  etc.  He  was  convicted  ;  and  the  case  is  now 
presented  on  exceptions  taken  to  instructions  given,  and  the  refusal  of 
instructions  requested,  as  to  what  facts  will  constitute  a  breaking  into 
and  entry,  material  constituents  of  the  offence  charged  in  the  indict- 
ment. The  facts  on  which  the  instructions  were  founded  are  :  that  in 
the  crib  was  a  quantity  of  shelled  corn,  piled  on  the  floor  ;  in  April  or 
May,  1878,  the  crib  had  been  broken  into,  and  corn  taken  therefrom, 
without  the  consent  of  the  owners,  who  had  the  crib  watched  ;  and 
thereafter  the  defendant  was  caught  under  it,  and  on  coming  out,  vol- 
untarily confessed  that  about  three  weeks  before  he  had  taken  a  large 
auger,  and  going  under  the  crib,  had  bored  a  hole  through  the  floor, 
from  which  the  corn,  being  shelled,  ran  into  a  sack  he  held  under  it; 
that  he  then  got  about  three  pecks  of  corn,  and  with  a  cob  closed  the 
hole.     On  these  facts  the  City  Court  was  of  opinion,  and  so  instructed 


SI^CT.  I.]  WALKER   V.    BTATK. 


79: 


the  jury,  that  there  was  such  a  breaking  an.l  entrv  of  the  cril),  as  would 
constitute  the  offence,  and  refused  instructious  re(iuesU'd  assertii,.'  the 
converse  of  the  proposition. 

The  material  changes  the  statute  has  wrought  as  to  the  ofTence  of 
burglary,  as  known  and  defined  at  common  law,  are  aa  to  the  time  nnd 
place  of  its  commission.  An  intent  to  steal  or  to  commit  a  felony  are 
the  words  of  the  statute,  while  an  intent  to  commit  a  felony  were  the 
words  of  the  common  law.  Under  our  statutes,  a  fclrMiy  is'defined  as 
a  public  offence,  punished  by  deatii,  or  by  imprisonment  in  the  peniten- 
tiary ;  while  public  offences  otherwise  punishable  are  misdemeanors. 
The  larceny  of  other  than  personal  property  particularly  enumerate.!,' 
and  under  special  circumstances,  the  property  not  exceeding  the  value 
of  $25,  is  petit  larceny,  and  a  mere  misdemeanor.  The  intelit  to  sU-nl. 
as  an  element  of  burglary,  is  therefore  made  the  equivalent  of  an 
intent  to  commit  a  felony,  though  the  value  of  the  thing  intended  to  be 
stolen  may  be  less  than  $25,  and  its  larceny  a  misdemeanor. 

The  statute  employs  the  words,  "breaks  into  and  enters;"  and 
these  are  borrowed  from  the  common-law  definition  of  burglarv.  Thcv 
must  be  received  with  the  signification,  and  understood  in  the  sense 
given  them  at  common  law.  "There  must,  in  general,"  says  Black- 
stone,  "be  an  actual  breaking,  not  a  mere  legal  clmisum  '/regit  bv 
leaping  over  invisible  ideal  boundaries,  which  may  constitute  a  civil 
trespass,  but  a  substantial  and  forcible  irruption.''  The  degree  of 
force  or  violence  which  may  be  used  is  not  of  importance,  —  it  mav 
be  very  slight.  The  lifting  the  latch  of  a  door ;  the  picking  of  a  lock, 
or  opening  with  a  ke}' ;  the  removal  of  a  pane  of  glass,  and  indeed,  the 
displacement  or  unloosing  of  any  fastening,  which  the  owner  has  pro- 
vided as  a  securit3-  to  the  house,  is  a  breaking —  an  actual  breaking  — 
within  the  meaning  of  the  term  as  employed  in  the  definition  of  burg- 
lar}' at  common  law,  and  as  it  is  employed  in  the  statute.  In  Hughes' 
case,  1  Leach,  C.  C,  case  178,  the  prisoner  had  bored  a  hole  with  a 
centre-bit  through  the  panel  of  the  house  door,  near  to  one  of  the  bolts 
by  which  it  was  fastened,  and  some  pieces  of  the  broken  panel  were 
found  withinside  the  threshold  of  the  door,  but  it  did  not  appear  that 
any  instrument  except  the  point  of  the  centre-bit,  or  that  any  part  of 
the  prisoner's  body  had  been  withinside  the  house,  or  that  the  aperture 
made  was  large  enough  to  admit  a  man's  hand.  The  court  were  of 
opinion  that  there  was  a  sufficient  breaking,  but  not  such  an  entry  :is 
would  constitute  the  offence. 

The  boring  the  hole  through  the  floor  of  the  crib  was  a  sufTlcicnt 
breaking,  but  with  it  there  must  have  been  an  entry.  Proof  of  a  break- 
ing, though  it  may  be  with  an  intent  to  steal  or  the  intent  to  commit  a 
felony,  is  proof  of  one  only  of  the  facts  making  up  the  offence,  and  is  as 
insufficient  as  proof  of  an  entry  through  an  open  door  witliout  break- 
ing. If  the  hand  or  any  part  of  the  body  is  intruded  witinn  the  house 
the  entry  is  complete.  The  entry  may  also  be  completed  by  the  intni- 
sion  of  a  tool  or  instrument  within  the  house,  though  no  part  of  the 


796  WALKER   V.    STATE,  [CHAP.  XVII. 

body  be  iutroduced.     Thus,  "  if  A  breaks  the  house  of  B.  in  the  night- 
time, with  intent  to  steal  goods,  and  breaks  the  window  and  puts  in  his 
liand,  or  puts  in  a  hook  or  other  engine  to  reach  out  goods,  or  puts  a 
pistol  in  at  the  window,  with  an  intent  to  kill,  though  his  hand  be  not 
within  the  window,  this  is  burglary."     1  Hale,  555.     When  no  part  of 
the  body  is  introduced,  —  when  the  only  entry  is  of  a  tool  or  instrument 
introduced  by  the  force  and  agency  of  the  party  accused,  the  inquiry  is 
whether  the  tool  or  instrument  was  employed  solely  for  the  purpose  of 
breaking,  and  thereby  effecting  an  entry,  or  whether  it  was  employed 
not  only  to  break  and  enter,  but  also  to  aid  in  the  consummation  of  the 
criminal  intent  and  its  capacity  to  aid  in  such  consummation.     Until 
there  is  a  breaking  and  entry  the  offence  is  not  consummated.     The 
offence  rests  largely  in  intention,  and  though  there  may  be  sufficient 
evidence  of  an  attempt  to  commit  it,  which  of  itself  is  a  crime,  the 
attempt  may  be  abandoned,  —  of  it  there  may  be  repentance  before  the 
consummation  of  the  offence  intended.     The  breaking  may  be  at  one 
time  and  the  entry  at  another.     The  breaking  may  be  complete,  and 
yet  an  entry  never  effected.     From   whatever  cause  an  entry  is  not 
effected,  burglary  has  not  been  committed.     When  one  instrument  is 
employed  to  break,  and  is  without  capacity  to  aid  otherwise  than  by 
opening  a  way  of  entry,  and  another  instrument  must  be  used,  or  the 
instrument  used  in  the  breaking  must  be  used  in  some  other  way  or 
manner  to  consummate  the  criminal  intent,  the  intrusion  of  the  instru- 
ment is  not  of  itself  an  entry.     But  when,   as  in  this  case,  the  in- 
strument is  employed  not  only  to  break,  but  to  effect  the  only  entry 
contemplated  and  necessary  to  the  consummation  of  the  criminal  intent ; 
when  it  is  intruded  within  the  house,  breaking  it,  effecting  an  entry, 
enabling  the  person  introducing  it  to  consummate  his  intent,  the  offence 
is  complete.     The  instrument  was  employed  not  only  for  the  purpose 
of  breaking  the  house,  but  to  effect  the  larceny  intended.     When  it  was 
intruded  into  the  crib  the  burglar  acquired  dominion  over  the  corn 
intended  to  be  stolen.     Such  dominion  did  not  require  any  other  act 
on  his  part.     When  the  auger  was  withdrawn  from  the  aperture  made 
with  it  the  corn  ran  into  the  sack  he  used  in  its  asportation.     There 
was  a  breaking  and  entry,  enabling  him  to  effect  his  criminal  intent 
without  the  use  of  any  other  means,  and  this  satisfies  the  requirements 
of  the  law. 
Let  the  judgment  be  affirmed. 

Judgment  affirmed. 


BECT.  n.]  HOLMES'S   CASE.  7<j7 

SECTION  IL 
ArBon, 

1  Hawk.  P.  C.  ch.  18,  sects.  1,  2.  Arson  is  a  felony  at  coinmon 
law,  in  maliciously  and  voluntarily  burning  the  house  of  another  by 
night  or  by  day. 

Not  only  a  mansion-house,  and  the  principal  parts  thereof,  but  also 
any  other  house,  and  the  outbuildings,  as  barns  and  stal)lfs,  adjoining; 
thereto,  and  also  barns  full  of  corn,  whether  they  be  adjoining  to  anv 
house  or  not,  are  so  far  secured  by  law,  that  the  malicious  burning 
of  them  is  arson,  and  it  is  said,  that  in  an  indictment  they  are  wt-ll 
expressed  by  the  word  dovms^  without  adding  rnansionahs. 

But  it  seems  that  at  this  day  the  burning  of  the  frame  of  a  hous*-.' 
or  of  a  stack  of  corn,  «&c.,  is  not  accounted  arson,  because  it  cannot 
come  under  the  word  domus,  which  seems  at  present  to  be  thought 
necessary  in  every  indictment  of  arson,  yet  it  is  said  that  anciently  the 
burning  a  stack  of  corn  was  accounted  arson. 


ANONYMOUS. 

Assizes.     1495. 

[Reported  Year  Book,  11  H.  VI L  1.] 

A  MAN  was  indicted  because  he  had  feloniously  at  night  burned  a 
barn,  and  because  it  adjoined  the  house,  it  was  held  felony  at  common 
law,  and  the  party  was  hanged. 


HOLMES'S   CASE. 
King's  Bench.     1634. 

[Reported  Cioke  Car.  376.] 
William  Holmes  was  indicted  in  London,  For  that  he.  in  April.  . 
Car.  I,,  being  possessed  of  an  house  in  London,  in  Throgmorton  stn-ot. 
in  such  a  ward,  for  six  years,  remainder  to  John  S.  for  three  years,  the 
reversion  to  the  corporation  of  Haberdashers,  in  fee:  he  vi  tt  arvni^. 
3  April,  7  Car.  I.,  the  said  house  ''felonicc,  voluntaiit\  ct  mahtios.-. 
igne  combussit,ea  intentione,  ad  eandcMU  donnnu  mansionalem,  ncc  non 
1  See  Mulligan  «.  Sute,  25  Tex.  App   iy9  —  Ku- 


798  HOLMES'S   CASE.  [CHAP.  XVII. 

cliversas  alias  domos  mansionales  diversorum  ligeorum,  domini  regis  ; 
adtimc  et  idem  situat.  et  existent,  ad  dictum  domum  mansionalam  dieti 
WiUielmi  Holmes  contigue  adjacent,  adtunc  et  ibidem  felonice,  vokinta- 
rie,  et  malitiose  totaliter  comburendo  et  igne  cousumendo  coutra  pacem." 

Upon  his  being  arraigned  at  Newgate,  he  was  found  guilty  ;  but 
before  judgment  this  indictment  was  removed  by  certiorari  into  this 
court.  It  was  argued  at  the  bar  by  Grimston,  that  it  was  not  felon}- ; 
and  now  this  Term  at  the  bench. 

And,  by  Richardson,  Chief  Justice,  Jones,  and  Berkley,  [JJ.],  it  was 
held,  that  it  was  not  felony  to  burn  a  house  whereof  he  is  in  possession 
by  virtue  of  a  lease  for  years  ;  for  they  said,  that  burning  of  houses 
is  not  felony,  unless  that  they  are  wdes  alienee:  and  therefore  Britton, 
p.  16,  Bracton,  p.  146,  and  The  Book  Assize,  27,  Assize,  pi.  44,  men- 
tion, that  it  is  felony  to  burn  the  house  of  another;  and  10  Edw.  4, 
pi.  14;  3  Hen.  7,  pi.  10;  10  Hen.  7,  pi.  1,  and  Boulter's  Case,  11 
Co.  29,  which  say,  that  burning  of  houses  generally  is  felony,  are  to 
be  intended  de  cedibus  alienis,  et  non  propriis :  and  although  the 
indictment  be  "  ea  intentione  ad  comburendum  felonice,  voluntarie,  et 
malitiose,"  the  houses  of  divers  others  ''  contigue  adjacentes,"  yet 
intent  only  without  fact  is  not  felony.  Also  Berkley  and  Jones,  Jus- 
tices, held,  that  it  cannot  be  said  to  be  ci  et  armis  when  it  is  in  his 
own  possession. 

Jones,  Justice,  also  said,  that  he  could  not  be  well  indicted  of  felony, 
because  none  of  their  names  are  mentioned  who  were  the  owners  of 
the  houses  adjoining.  But  to  that  objection  Berkley  and  Richardson, 
[JJ.],  agreed  not. 

But  1  argued,  that  the  burning  in  the  indictment  mentioned  is  felony, 
because  it  is  capitale  crimeji,  felleo  animo  perpetratum,  which  is  the 
definition  of  felony  in  Co.  Lit.  391,  a.  Also  by  the  rule  in  Bracton, 
146.  "  quod  incendium  nequiter,  et  ob  iniraicitias,  factum  capitali 
poena  puniatur ;  si  veio  sit  incendium  fortuito  vel  per  negligentiam, 
et  non  mala  conscientia,  non  sic  punietur  ;  sed  versus  eum  criminaliter 
agatur."  And  it  cannot  be  said  to  be  by  negligence  in  another's  house  ; 
wherefore  it  is  to  be  intended  in  iiis  own  house.  Also  this  burning  is 
found  to  be  malitiose  ;  so  it  is  mala  co7isciefdid  et  nequiter  factum. 
Also  this  burning  of  his  house  in  a  street  of  the  city  adjoining  to  the 
houses  of  others,  is  to  the  endangering  of  the  city,  and  therefore  ought 
to  be  construed  to  be  felony ;  but  so  peradventure  is  not  the  burning 
of  his  house  in  the  fields.  And  whereas  it  was  said,  that  the  inten- 
tion cannot  make  a  felony,  it  was  answered,  that  the  intention  here  is 
coupled  with  an  act  of  burning,  and  with  the  intendment  of  an  act 
which  is  felony;  as  5  Hen.  7,  pi.  18;  7  Hen.  7,  pi.  42 ;  13  Edw.  4, 
pi.  9  ;  where  a  man  delivers  goods  to  one,  and  afterwards  he  that 
delivered  them  privately  steals  them,  to  the  intent  to  charge  him,  it  is 
felony.  And  whereas  it  was  objected,  that  being  his  own  possession, 
it  cannot  be  said  vi  et  armis  ;  I  answered,  that  vi  et  armis  is  well 
enough,  where  there  is  a  malfeasance,  as  it  is  in  an  action  upon  the 


SECT.  II.]  ISAAC'S   CASE. 


799 


case,  9  Co.  50,  b.  Also  every  iiulidiueul  is  vi  et  artnis  et  contra 
pacem,  where  an  act  is  clone  against  tlie  conjnionweallb :  so  ii  is 
where  a  servant  runs  away  wilh  goodb  coniniiltfil  to  his  trust  above 
forty  shillings,  although  properly  it  cannot  he  said  to  be  vi  et  urmu, 
because  they  were  in  his  custody.  And  in  this  case  the  ill  consequence 
which  might  have  fallen  out  by  this  act  makes  the  oUence  the  greater ; 
and  The  Year  Books  in  10  Edw.  4,  pi.  14;  3  Hen.  7,  pi.  10;  11  INu. 
7,  pi.  1  ;  and  Stanford,  36  ;  1 1  Co.  29  ;  4  Co  20,  a,  put  the  case  of 
burning  of  houses  generally,  :ind  not  of  the  burning  of  other  men's 
houses  :  and  it  is  an  equal  mischief  in  a  commonwealth  to  bmii  his 
own  in  a  city  or  vill  as  to  burn  the  houses  of  others,  for  the  danger 
which  may  ensue. 

But  THE  OTHER  THREE  JUSTICES  rcsolvcd  ut  Nuj/ra,  that  it  was  not 
felony  ;  wherefore  he  was  discharged  thereof. 

But  because  it  was  an  exorbitant  offence,  and  found,  they  ordered, 
that  he  should  be  fined  £500  to  the  king,  and  imprisoned  during  the 
king's  pleasure,  and  should  stand  upon  the  pillory,  with  a  pai)er  upou 
bis  head  signifying  the  offence,  at  Westminster  and  at  Cheapside, 
upon  the  market-day,  and  m  the  place  where  he  connnitted  the  offence, 
and  should  be  bound  with  good  sureties  to  his  good  behavior  durin<' 
life.^ 


ISAAC'S   CASE. 

Spring  Assizes.     1799. 

[Reported  2  I-Jast  P.  C.  1031.] 

John  Isaac  was  indicted  for  a  misdemeanor  in  having  unlawfully, 
wilfully,  and  maliciously  set  on  fire  and  burnt  a  certain  house  of 
Thomas  Isaac,  being  in  the  occupation  of  the  said  John  Isaac :  which 
house  the  indictment  alleged  was  contiguous  and  adjoining  to  certain 
dwelling-houses  of  divers  liege  subjects,  &c. ;  by  means  whereof  the 
same  were  in  great  danger  of  being  set  on  fire  and  burnt.  There  was 
a  second  count  which  differed  only  in  charging  that  the  house  set  ou 
fire  was  the  prisoner's  own  house. 

The  counsel  for  the  prosecution  opened  that  the  charge  to  be  proved 
against  the  defendant,  though  laid  as  a  misdemeanor,  was,  that  he  wil- 
fully set  on  fire  his  own  house  in  order  to  defraud  the  Pluenix  fin- 
insurance  office  ;  and  that  in  fact  his  own  and  several  other  person's 
houses  adjoining  were  burnt  down.  Upon  which  Buller,  J.,  said,  that  ii 
other  persons'  houses  were  in  fact  burnt,  although  the  defendant  might 
only  have  set  fire  to  his  own,  yet  under  these  circumstances  the  prisoner 
was  guilty,  if  at  all,  of  felony  ;  the  misdemeanor  l)eing  merged  ;  and  he 
could  not  be  convicted  on  this  indictment;  and  therefore  directed  aa 
acquittal.^ 

'  See  s.  c.  reported  W.  Jones,  351.—  Ed. 
2  See  Probert's  Case,  2  East  P.  C.  1030.  —  Ed. 


800  COMMONWEALTH   V.   TUCKER.  [CHAP.  XVII. 


COMMONWEALTH   v.  TUCKER. 
Supreme  Judicial  Court  of  Massachusetts.     1872. 

[Reported  110  Mass.,  403] 

Indictment  alleging  that  the  defendant  set  fire  to  the  barn  of  Wil- 
liam H.  Codding,  and  by  the  kindling  of  said  fire  and  the  burning  of 
said  barn,  the  dwelling-house  of  Codding  was  "burned  and  consumed." 
At  the  trial  in  the  Superior  Court,  before  Brigham,  C.  J.,  the  evidence 
tended  to  show  that  the  barn  was  burned  entirely  ;  that  the  shingles  on 
the  roof  of  the  dwelling-house  took  fire  and  wore  burned  in  two  places ; 
and  that  persons  were  on  the  roof  keeping  it  wet  with  water ;  but  as  to 
how  much  the  shingles  were  burned  there  was  a  conflict  of  testimony. 

The  defendant  asked  the  judge  to  instruct  the  jury  "  that  they  must 
be  satisfied  that  some  portion  of  the  dwelling-house  had  been  actually 
on  fire  by  reason  of  the  burning  of  the  barn,  and  had  been  burned  and 
consumed  thereby ;  and  that  the  substance  and  fibre  of  the  wood  of 
such  portion  so  on  fire  was  actually  destroyed."  But  the  judge  refused 
so  to  instruct  the  jury,  and  instructed  them  "  that  they  must  be  satis- 
fied that  some  portion  of  the  dwelling-house  had  been  actually  on  fire 
by  reason  of  the  burning  of  the  barn,  and  had  been  burned  thereby,  so 
that  the  substance  of  the  wood  of  such  portion  so  on  fire  was  actually 
burned."  The  jury  returned  a  verdict  of  guilty,  and  the  defendant 
alleged  exceptions. 

/S.  Ji.  Townsend,  for  the  defendant,  cited  Commonwealth  v.  Betton, 
5  Cush.  427  ;  Commonwealth  v.  Van  Schaack,  16  Mass.  105. 

C.  B.  Train^  Attorney  General,  for  the  Commonwealth.  The  indict- 
ment is  upon  the  Gen.  Sts.  c.  161,  §  1,  which  provide  that  "  whoever 
wilfully  and  maliciously  burns  the  dwelling-house  of  another,"  or  "  wil- 
fully and  maliciously  sets  fire  to  any  building,  by  the  burning  whereof 
such  dwelling-house  is  burnt,"  shall  be  punished.  The  instructions 
were  correct.  Commonwealth  v.  Van  Schaack,  16  Mass.  105  ;  Com- 
monwealth y.  Betton,  5  Cush.  427;  Regina  v.  Parker,  9  C.  &  P.  45  ; 
Regiua  u  Russell,  C.  &  Marsh.  541  ;  2  East  P.  C.  1020;  1  Hale  P. 
C.  568;  Roscoe  Crim.  Ev,  (8th  ed.)  281. 

Wells,  J.  The  instructions  given  to  the  jur}'  were  correct,  and  in 
accordance  with  the  authorities  ;  as  well  those  cited  for  the  defendant 
as  those  for  the  Commonwealth.  They  required  the  jur}'  to  find  that 
some  portion  of  the  dwelling-house  had  been  actually  on  fire  and  burned. 
To  have  required  them  to  find  something  more,  by  use  of  the  terms 
"  consumed"  and  "destroyed,"  as  prayed  for,  would  have  been  to  go 
beyond  the  provisions  of  the  statutes,  and  to  leave  the  jury  with  no 
precise  definition  of  that  which  was  necessary  to  constitute  the  offence. 

Exceptions  overruled. 


SECT.  L]  the  POULTEEERS'  CASE.  bOl 


CHAPTER  XVIII. 
CRIMINAL   CONSPIRACY. 


SECTION   I. 

Under  Ancient   Statutes. 

33  Erlw.  I.  Stat.  2  ;  [Ordinance  of  Conspirators.]  Conspirators  be 
the}'  that  do  confeder  or  bind  themselves  by  oath,  covenant,  or  other 
alliance,  that  ever}'  of  them  shall  aid  and  bear  the  other  falselv  and 
maliciously  to  indict,  or  cause  to  indict,  or  falsely  to  move  or  maintain 
pleas ;  and  also  such  as  cause  children  within  age  to  appeal  men  of 
felony,  whereby  they  are  imprisoned  and  sore  grieved ;  and  such  as 
retain  men  in  the  country  with  liveries  or  fees  for  to  maintain  their 
malicious  enterprises  and  to  drown  the  truth ;  and  this  extendeth  as 
well  to  the  takers,  as  to  the  givers.  And  stewards  and  bailiffs  of  great 
lords,  which  by  their  seigniory,  office,  or  power,  undertake  to  bear  or 
maintain  quarrels,  pleas,  or  debates  that  concern  other  parties  than 
such  as  touch  the  estate  of  their  lords  or  themselves.  This  ordinance 
and  final  definition  of  conspirators  was  made  and  accorded  by  the  King 
and  his  Council  in  his  Parliament  the  thirty-third  year  of  his  reign. 


THE  POULTERERS'  CASE. 
Stak  Chamber.     161L 

[Reported  9  Coke  55  h.] 

Mich.  8  Jac.  Regis,  the  case  between  Stone,  plaintiff,  and  R.nlpli 
Waters,  Henry  Bate,  J.  Woodbridge,  and  many  other  poulterers  of 
London,  defendants,  for  a  combination,  confederacy,  and  agreement 
betwixt  them  falsly  and  maliciously  to  charge  the  plaintiff  (who  had 
married  the  widow  of  a  poulterer  in  Gracechurch  Street)  with  the 
robbery  of  the  said  Ralph  Waters,  supposed  to  ho  committed  in  the 
county  of  Essex,  and  to  procure  him  to  be  indicted,  arraigned, 
adjudged,  and  hanged,  and  in  execution  of  this  false  conspiracy,  they 
procured  divers  warrants  of  justices  of  peace,  by  force  whereof  Stom 


802  THE  poulterers'  case.  [chap,  xviil 

was  apprehended,  examined,  and  hound  to  appear  at  the  assizes  in 
IZssex ;  at  which  assizes  the  defendants  did  appear  and  preferred  a 
bill  of  indictment  of  robbery  against  the  said  plaintiff;  and  the  justices 
of  assize  hearing  the  evidence  to  the  grand  jury  openly  in  court,  they 
perceived  great  malice  in  the  defendants  in  the  prosecution  of  the 
cause ;  and  upon  the  whole  matter  it  appeared,  that  the  plaintiff  the 
whole  day  that  Waters  was  robbed,  was  in  London,  so  that  it  was 
impossible  that  he  committed  the  robber^',  and  thereupon  the  grand 
inquest  found  ignoramxis.  And  it  was  moved  and  strongly  urged  by 
the  defendants'  counsel,  that  admitting  this  combination,  confederac}', 
and  agreement  between  them  to  indict  the  plaintiff  to  be  false,  and 
malicious,  that  3'et  no  action  lies  for  it  in  this  court  or  elsewhere,  for 
divers  reasons.  1.  Because  no  writ  of  conspiracy  for  the  part}'  grieved, 
or  indictment  or  other  suit  for  the  King  lies,  but  where  the  party 
grieved  is  indicted,  and  legitimo  modo  acquietatus,  as  the  books  are 
F.  N.  B.  114  b ;  6  E.  3,  41  a  ;  24  E.  3,  34  b ;  43  E.  3,  Conspiracy  11; 
27  Ass.  p.  59  ;  19  H.  6,  28  ;  21  H.  6,  26  ;  9  E.  4,  12,  &c.  2.  Every  one 
who  knows  himself  guilty  may,  to  cover  their  offences,  and  to  terrify 
or  discourage  those  who  would  prosecute  the  cause  against  them,  sur- 
mise a  confederacy,  combination,  or  agreement  betwixt  them,  and  by 
such  means  notorious  offenders  will  escape  unpunished,  or  at  the  least, 
justice  will  be  in  danger  of  being  perverted,  and  great  offences  smoth- 
ered, and  therefore,  the}'  said,  that  there  was  no  precedent  or  warrant 
in  law  to  maintain  such  a  bill  as  this  is.  But  upon  good  consideration, 
it  was  resolved  that  the  bill  was  maintainable  ;  and  in  this  case  divers 
points  were  resolved.^ 

3.  It  is  to  be  observed  that  there  was  means  b}-  the  common  law 
before  indictment  to  protect  the  innocent  against  false  accusations,  and 
to  deliver  him  out  of  prison.  .  .  .  And  it  is  true  that  a  writ  of  con- 
spiracy lies  not,  unless  the  part}'  is  indicted,  and  legitimo  modo  acquie- 
tatus^ for  so  are  the  words  of  the  writ ;  but  that  a  false  conspiracy 
betwixt  divers  persons  shall  be  punished,  although  nothing  be  put  in 
execution,  is  full  and  manifest  in  our  books  ;  and  therefore  in  27  Ass. 
p.  44,  in  the  articles  of  the  charge  of  inquiry  by  the  inquest  in  the 
King's  Bench,  there  is  a  nota,  that  two  were  indicted  of  confederacy, 
each  of  them  to  maintain  the  other,  whether  their  matter  be  true,  or 
false,  and  notwithstanding  that  nothing  was  supposed  to  be  put  in  exe- 
cution, the  parties  were  forced  to  answer  to  it,  because  the  thing  is 
forbidden  by  the  law,  which  are  the  very  words  of  the  book  ;  which 
proves  that  such  false  confederacy  is  forbidden  by  the  law,  although  it 
was  not  put  in  use  or  executed.  So  there  in  the  next  article  in  the 
same  book,  inquiry  shall  be  of  conspirators  and  confederates,  who 
agree  amongst  themselves,  &c.  falsly  to  indict,  or  acquit,  &c.  the  man- 
ner of  agreement  betwixt  whom,  which  proves  also,  that  confederacy 
to  indict  or  acquit,  although  nothing  is  executed,  is  punishable  by  law : 
and  there  is  another  article  concerning  conspiracy  betwixt  merchants, 

^  The  first  two  points,  not  relating  to  the  Law  of  Con.'spiracy,  are  omitted. 


SKCT.  I.]  THE   POULTEnF.K.>'   CASE.  803 

and  in  these  cases  the  conspinu-v  m  conlVderacv  is  ptini'^Iial.h-, 
although  the  conspiracy  or  confederacy  be  not  excciitJ.l ;  and  it  in  huKl 
in  19  R.  2,  Brief 'J2G,  a  man  shall  have  a  writ  of  conspiracy,  allhough 
they  do  nothing  but  conspire  together,  and  ho  shall  recover  daniages, 
and  they  may  be  also  indicted  thereof.  Also  the  usual  coniniiHBion  of 
oyer  and  terminer  gives  power  to  the  commissioners  U)  intiuin-,  Ac  dt 
omnibus  coadumitionibxis,  confaderatinnibus,  etfulsis  nUi.j.mtlis ;  and 
coadimatio  is  a  uniting  of  themselves  togt-ther,  confunknain  is  a'com- 
bination  amongst  them,  aixiX  f<ih(i  all'ujdntiu  is  a  false  binding  each  Ui 
the  other,  by  bond  or  promise,  to  execute  some  unlawful  act:  in  thcao 
cases  before  the  unlawful  act  executed  the  law  punishes  the  coadunn- 
tlon,  confederacy,  or  false  alliance,  to  the  end  to  prevent  the  luilawful 
act,  quia  qufoido  aliquid prohlbctur,  prohibetur  et  id  per  fpiod pi  rven- 
ittir  ad  ilUid :  et  affectus  jynnitur  licet  7ton  seqxiatur  effcctua  ;  and  in 
these  cases  the  common  law  is  a  law  of  mercy,  for  it  prevents  tUo 
malignant  from  doing  mischief,  and  the  innocent  from  suffering  it. 
Hil.  37  H.  8,  in  the  Star  Chamber  a  priest  was  stigmatized  with  V.  and 
A.  in  his  forehead,  and  set  upon  the  pillory  in  Cheapside,  with  a 
written  paper, /or /«/se  accusation.  M.  3  &  4  Ph.  «i  Ma.,  one  also  for 
the  like  cause /i<i7  stigmaticns  with  F.  &  A.  in  the  check,  witli  such 
superscription  as  is  aforesaid.  "  Vide  Proverb'  1.  Si  te  hictaverint 
2')eccatores  et  dixerint,  veni  nobiscwn  ut  insidit-nmr  sanguini,  abscou- 
damus  tendictdas  contra  insontem  frustra,  &c.  omuem  pretiosani  »ub- 
stantiam  reperiemus  et  implebinms  domiis  nostras  spoliis,  &r.  J'''i/i 
mi,  ne  atnbules  cum  eis,  &c.  pedes  enim  eorum  ad  malum  currunt,  et 
festinant  ut  effundant  sangjiinem."  And  afterward  upon  the  hearing  of 
the  case,  and  upon  pregnant  proofs,  the  defendants  were  sentenced 
for  the  said  false  confederac}'  by  fine  and  imprisonment.  Xota,  reailer, 
these  confederacies,  punishable  by  law,  before  they  are  executed,  ought 
to  have  four  incidents  :  1.  It  ought  to  be  declared  by  some  manner  of 
prosecution,  as  in  this  case  it  was,  either  by  making  of  bonds,  or 
promises  one  to  the  other ;  2.  It  ought  to  be  malicious,  as  for  unjust 
revenge,  &c.  3.  It  ought  to  be  false  against  an  innoccut:  4.  It  ought 
to  be  out  of  court  voluntarily. 


8C4  KEX   V.   EDWARDS.  [CHAP.  XVIII. 

SECTION  II. 

Conspiracy  in  General. 

REX  V.  EDWARDS. 
Kijig's  Bench.     1724. 

[Reported  8  Modern,  320.] 

The  defendants  were  indicted,  for  that  they,  per  conspiratiotum 
inter  eos  habitam,  gave  the  husband  money  to  marry  a  poor  helpless 
■woman,  who  was  an  inhabitant  in  the  parish  of  B.  and  incapable  of 
marriage,  on  purpose  to  gain  a  settlement  for  her  in  the  parish  of  A. 
where  the  man  was  settled. 

It  was  moved  to  quash  this  indictment,  because  it  is  no  crime  to 
marry  a  woman  and  give  her  a  portion  ;  and  the  justices  are  not  proper 
judges  what  woman  is  capable  of  a  husband,  neither  have  they  any 
jurisdiction  in  conspiracies. 

It  was  insisted  on  the  other  side,  that  there  is  a  crime  set  forth  in 
this  indictment,  which  is  a  conspiracy  to  charge  a  parish,  &c.  and  a 
conspiracy  to  do  a  lawful  act,  if  it  be  for  a  bad  end,  is  a  good  founda- 
tion for  an  indictment.  An  indictment  for  a  conspiracy  to  charge  a 
man  to  be  the  father  of  a  bastard-child,  was  held  good,  Temberley  v. 
Child,  1.  Sid.  68.  s.  c.  1  Lev.  62;  Rex  v.  Armstrong,  1  Vent.  304, 
though  fornication  is  a  spiritual  offence ;  because  the  Court  of  King's 
Bench  has  cognizance  of  every  unlawful  act  by  which  damages  may 
ensue.  So  an  information  for  a  conspiracy  to  impoverish  the  farmers 
of  the  excise,  was  held  good. 

To  which  it  was  answered,  that  those  were  conspiracies  to  do  unlaw- 
ful acts ;  but  it  was  a  good  act  to  provide  a  husband  for  this  woman. 

The  Court.  The  quashing  indictments  is  a  discretionary  power  of 
the  court,  but  in  this  case  the  defendant  has  not  showed  anything  to 
induce  the  court  to  quash  the  indictment ;  and  if  the  matter  be  doubt- 
ful, the  defendant  must  plead  or  demur  ;  but  indictments  for  conspira- 
cies are  never  quashed. —  A  bare  conspiracy  to  do  a  lawful  act  to  an 
unlawful  end,  is  a  crime,  though  no  act  be  done  in  consequence 
thereof,  Reg.  v.  Best,  2  Ld.  Ray.  1167;  s.  C  6  Mod.  185;  but  if  the 
fault  in  the  indictment  be  plain  and  apparent,  it  is  quashed  for  that 
reason,  and  the  party  shall  not  be  put  to  the  trouble  to  plead  or  demur. 
Suppose  there  is  a  conspiracy  to  let  lands  of  ten  pounds  a  year  value 
to  a  poor  man,  in  order  to  get  him  a  settlement,  or  to  make  a  certificate 
man  a  parish-officer,  or  a  conspiracy  to  send  a  woman  big  of  a  bastnrd- 
child  into  another  parish  to  be  delivered  there,  and  so  to  charge  tint 
l)arish  with  the  child ;  certainly  these  are  crimes  indictable.  But  in 
this  indictment  it  is  not  set  forth,  that  the  woman  was  likely  to  bo 


S^CT.  II.]  RKX    r.    TCHNKR.  ,g0j5 

Chargeable  to  the  parish.  As  to  the  ohjccLion,  that  the  bcssion.n  have 
no  jurisihction  in  conspiracy,  the  contrary  is  true;  they  have  no  juriH- 
diction  in  perjury  at  common  hnv,  but  by  the  sUituu-  ihi-v  have  un.l 
tbcpr  have  no  jurisdiction  to  incUct  for  for},a-rv,  Inai  ccrtuinh  thev'ha.c 
jurisdiction  cle  cominrationibus,  Kex  r.  Rispal,  :j  Hun  .  l:52U  •'  und'such  a 
person  as  tins  defendant  is  was  punished  hv  indi.t.n.nl  at  comn.ou  law  • 
But  in  the  Trinity  Term  following  ju.lgment  w:i8  givi-n  for  the 
deiendaut,  because  it  was  not  averivd  in  the  indictn..-nt  thai  Ih.- 
woman  was  last  legally  settled  in  the  parish  of  li.,  but  only  that  bhi- 
was  an  inhabitant  there. 


REX  V.  TURNER. 
King's  Bench.     1811. 

[Reported  13  East,  228] 

This  was  an  indictment  for  a  conspiracy,  which  stated  that  tli.; 
defendants  unlawfully  and  wickedly  devising'and  intending  to  injure-, 
oppress,  and  aggrieve  T.  Goodlake,  of  Letcombc  Regis  in°tlie  cuuniy 
of  Berks,  Esquire,  on  the  24th  of  November,  .5(»th  Geo.  3,  with  force 
and  arms,  at  East  Challow  in  the  county  aforesaid,  uulawfullv  and 
wickedly  did  conspire,  combine,  confederate,  and  agree  together,  and 
with  divers  other  persons  unknown,  to  go  into  a  certain  ijreserve  tor 
hares  at  Letcombc  Regis  aforesaid,  in  the  county  aforesaid,  belonging 
to  the  said  T.  G.,  without  the  leave  and  against  the  will  and  consent 
of  the  said  T.  G.,  to  snare,  take,  kill,  destroy,  and  carry  away  the 
hares  in  the  said  preserve  then  being,  and  to  procure  divers  Ijludgeons 
and  other  offensive  weapons,  and  to  go  to  the  said  preserve  armed 
therewith  for  the  purpose  of  opposing  any  persons  who  should 
endeavor  to  apprehend  or  obstruct  or  prevent  them  in  and  from  carry- 
ing into  execution  their  unlawful  and  wicked  purposes  aforesaid  ;  and 
that  the  said  defendants,  in  pursuance  of  and  according  to  the  conspir- 
ac3',  combination,  confederacy,  and  agreement  aforesaid,  so  as  afore- 
said before  had,  afterwards,  to  wit,  on  the  said  day,  &c.,  alM>ut  the 
hoin-  of  12  in  the  night  of  the  same  day,  with  force  and  arms,  at  Ea>t 
Challow  aforesaid,  in  the  county  aforesaid,  unlawfully  and  wiiketlly 
did  procure  divers  large  bludgeons,  and  other  ofTensive  wcai)on8.  and 
did  go  to  the  said  preserve  of  the  said  T.  G.  armed  therewith,  for  the 
purpose  of  opposing  any  persons  who  should  endeavor  to  apprehend. 
obstruct,  or  prevent  them  in  and  from  carrying  into  execution  their 
unlawful  and   wicked  purposes  aforesaid.     And  the  said  defeudauts, 

I  It  is  said,  8.  c.  1  Sess  Pases,  3.16,  tliat  tlie  cmirt  left  tho  defpndantjt  to  demur  i«r 
plead  to  it,  as  they  should  think  fit;  and  s.  c.  1  Stra.  707,  that  ou  a  demurrer  i'>  thu 
indictment,  judgment  was  giveu  for  the  defeudaut,  becausu  it  is  not  au  uffcoc* 
indictablt. 


806  REX   V.   TUKNER.  [cHAP.  XYIII. 

being  so  armed  as  aforesaid,  in  further  execution  of  their  unlawful  and 
wicked  purposes  aforesaid,  then  and  there  did  set  divers,  to  wit,  100 
snares,  for  the  purpose  and  with  the  intent  to  take,  kill,  destroj-,  and 
carr}'  away  the  hares  in  the  said  preserve  then  being ;  in  contempt  of 
the  king  and  his  laws,  to  the  evil  example  of  others,  to  the  great 
damage  of  the  said  T.  G.,  and  against  the  peace,  etc. 

After  a  verdict  of  guilty,  it  was  moved  in  the  last  term,  b}-  Jen-is,  to 
arrest  the  judgment  for  the  insufficiency  of  the  charge,  which  was  onh' 
that  of  an  agreement  to  commit  a  mere  trespass  upon  pi'operty,  and  to 
set  snares  for  hares,  and  was  not  an  indictable  offence,  but  at  most 
only  an  injur}-  of  a  private  nature,  prohibited  sub  modo,  under  a  pen- 
alty. And  2  Hawk.  P.  C.  c.  25,  s.  4,  was  referred  to.  Another 
objection  was  taken,  that  the  place  where  the  offence  was  committed 
was  not  alleged  with  sufficient  certainty  and  precision. 

Gleed  now  opposed  the  rule,  and  endeavored  to  sustain  the  indict- 
ment upon  the  authoritv  of  2  Hawk.  P.  C.  c.  72,  s.  2,  where  it  is  said 
that  all  confederacies  whatsoever  wrongfully  to  prejudice  a  third  per- 
son are  highly  criminal  at  common  law  ;  as  where  several  confederate 
to  maintain  one  another  in  an}'  matter  whether  it  be  true  or  false.  The 
cases  also  show  that  it  is  equalh*  an  offence  to  combine  to  do  a  lawful 
act  bj-  unlawful  means,  or  to  an  unlawful  end,  as  to  do  an  act  in  itself 
unlawful ;  as  in  the  instance  of  workmen  conspiring  together  to  raise 
their  wages.  The  King  v.  The  Journeymen  Tailors  of  Cambridge,  8 
Mod.  11,  or  parish  officers  conspiring  to  marr\'  a  helpless  pauper  into 
another  parish,  to  settle  her  there  and  rid  themselves  of  her  mainte- 
nance, The  King  v.  Edwards  and  Others,  8  Mod.  320.  And  in  all 
cases  of  unlawful  conspirac}',  the  mere  unlawful  agreement  to  do  the 
act,  though  it  be  not  afterwards  executed,  constitutes  the  offence ; 
according  to  Rex  v.  Armstrong  and  Others,  1  Ventr.  304,  and  Rex  r. 
Rispal,  3  Burr.  1320,  and  1  W.  Black.  368.  In  this  latter  case  the 
indictment  for  conspiring  to  charge  a  man  with  a  false  fact,  and 
exacting  mone}-  from  him  under  pretence  of  stifling  the  charge,  was 
sustained  ;  though  the  fact  imputed,  which  was  merely'  that  of  taking 
hair  out  of  a  bag  belonging  to  the  defendant  Rispal,  did  not  import  in 
itself  to  be  any  offence.  [Lord  Ellenborough,  C.  J.  All  the  cases  in 
conspiracy  proceed  upon  the  ground  that  the  object  of  the  combination 
is  to  be  effected  by  some  falsity  ;  insomuch  that  in  Tailor  and  Tow- 
lin's  case  in  Godb.  444,  it  was  held  necessary  in  conspirac}'  to  allege 
the  matter  to  he  false  et  malitiose.  By  the  old  law  indeed  the  offence 
was  considered  to  consist  in  imposing  b}-  combination  a  false  crime 
u[)on  a  person.  But  are  you  prepared  to  show  that  two  unqualified 
persons  going  out  together  by  agreement  to  sport  is  a  public  offence  ?] 
Modern  cases  have  carried  the  offence  further  than  some  of  the  old 
authorities,  such  as  The  King  v.  Eccles  and  Others,  where  the  defend- 
ants were  convicted  upon  a  charge  of  conspiring  together  by  indirect 
means  (not  stating  what  those  means  were)  to  prevent  a  person  from 
carrying  on  his  trade.     And  in  The  King  v.  Spragge  and  Others,  2 


SECT.  II.]  REX    V.    lYWKLL 


307 


Burr.  093,  wh.c-h  charged  tl.o  defendants  with  a  conspiraov  to  indict 
and  prosecute  W.  G.  for  a  crime  liahle  by  law  U>  bo  caiuiallv  pun- 
ished, and  that  in  pursuance  of  such  conspiracv  thev  di.J  ufti-rwardH 
indict  him  ;  one  of  the  objections  was.  tliat  the  d.ar^'e  wan  onlv  of  a 
conspiracy  to  indict,  not  of  a  conspimcy  to  iu.lict  JaLsdy  :  Ux\  it  w.-.h 
overruled. 

Lord  ELLKxnoitorc.rr,  C.  J.  That  was  a  conspiracy  to  indict  another 
of  a  capital  crime  ;  which  no  doubt  is  an  ofTence.  An.l  the  cage  of 
The  King  v.  Eccles  and  Others  was  considered  as  a  conspiracy  in 
restraint  of  trade,  and  so  far  a  conspiracy  to  do  an  unlawful  act  afTect- 
ing  the  public,  lint  I  should  be  .sorry  that  the  cases  in  conHpirncv 
against  individuals,  which  have  gone  far  enough,  should  be  pushe*!  hiiil 
farther:  I  should  be  sorry  to  have  it  doubted  whether  persons  agree- 
ing to  go  and  sport  upon  another's  ground,  in  other  words,  to  couunit 
a  civil  trespass,  should  be  thereby  in  i)eril  of  an  indi-tment  for  an 
offence  which  would  subject  them  to  infamous  punishment. 

Per  Curiam.  r^i^  absolute} 


REX   V.   PYWELL. 
Westminster  Sittings.     1816. 

[Reported  1  Starkic,  402] 

This  was  an  indictment  against  the  defendants  for  a  conspiracy  to 
cheat  and  defraud  General  Maclean,  by  selling  him  an  unbound  liorse. 

It  appeared  that  the  defendant  Pyw^U  had  advertised  the  sale  of 
horses,  undertaking  to  warrant  their  soundness.  Upon  an  application 
by  General  Maclean  at  Py well's  stables,  liudgery,  another  of  the  de- 
fendants, stated  to  him  that  he  had  lived  witli  the  owner  of  a  horsfi 
which  was  shown  to  him,  and  that  he  knew  the  horse  to  be  perfectly 
sound,  and  as  the  agent  of  Pywell,  he  warranted  him  to  be  sound. 
General  Maclean  purchased  the  horse,  and  took  the  following  receipt : 

"  Received  of Maclean,  Esq.,  the  sum  of  fifty  guineas,  for  a  gehl- 

ing  warranted  sound,  to  be  returned  if  not  approved  of  within  a  week." 

^"  After  the  most  careful  and  elaborate  consideration  of  the  case.s,  I  am  natiffiod 
that  Rex  v.  Turner  is  not  law."  Lokd  Cami'bki.l,  C.  J.,  in  Keg.  v.  HowLuiJ-h,  5  Cox 
436,  490.  "The  King  v.  Turner,  13  East,  231,  to  say  the  least  of  it.  i>  .an  txid  cvc. 
Confederates  armed  with  clults  to  lieat  down  ojipopiti-m,  entered  a  man'.s  pn-jwrvo  in 
the  night  to  take  and  carry  away  hh  hares;  and  Lord  Kllenl>orouph  calle<l  tliin  'an 
agreement  to  go  and  sport  on  another's  ground,'  in  other  wonis,  'to  commit  a  riril 
trespass' !  It  would  be  a  curious  thing  to  know  what  he  would  have  calhNi  an  aRrw>- 
meut  to  steal  a  man's  pigs  or  to  rob  his  henroost.  lu  itsmilde«t  asi>o.t,  the  entry iuto 
the  preserve  with  liludgeons  was  a  riot,  which,  it  appears  by  a  note  in  the  !^«r.lnd  rol- 
ume  of  Mr.  Chitty's  Criminal  Law,  p.ige  500,  may  be  a  .■^nld.rt  .f  i..ii.;.irjry." 
Gibson,  C.  J.,  in  Slifflin  v.  Com.,  5  W.  &  S.  461.  463.  —  F.i» 


808  KEGINA   V.   WARBURTON.  [cHAP.  XVIII. 

It  was  discovered,  very  soon  after  the  sale,  that  the  animal  was 
nearly  worthless.  The  prosecutors  were  proceeding  to  give  evidence 
of  the  steps  taken  to  return  the  gelding,  when  — 

Lord  Ellenborough  intimated  that  the  case  did  not  assume  the 
shape  of  a  conspiracy  ;  the  evidence  would  not  warrant  any  proceeding 
beyond  that  of  an  action  on  the  warranty,  for  the  breach  of  a  civil  con- 
tract. If  this  (he  said)  were  to  be  considered  to  be  an  indictable 
offence,  then  instead  of  all  the  actions  which  had  been  brought  on  war- 
ranties, the  defendants  ought  to  have  been  indicted  as  cheats.  And 
that  no  indictment  in  a  case  like  this  could  be  maintained,  without 
evidence  of  concert  between  the  parties  to  effectuate  a  fraud. 

The  defendants  were  accordingly  acquitted. 

The  Attorney-  General  and  Andrews  for  the  prosecution. 

Nolan  and  Spankie  for  the  defendants. 


REGINA  V.   WARBURTON. 
Crown  Case  Reserved.     1870. 

[Reported  L.  R.  1  C.  C.  R.  274.] 

Case  stated  by  Brett,  J. :  — 

Indictment,  amongst  other  counts,  that  the  prisoner  had  unlawfully 
conspired  with  one  Joseph  Warburton  and  one  W.  H.  Pepys,  bj'  divers 
subtle  means  and  devices,  to  cheat  and  defraud  the  prosecutor,  S.  C. 
Lister. 

At  the  trial  at  the  summer  assizes,  in  1870,  for  the  West  Riding  of 
Yorkshire,  at  Leeds,  it  was  found  that  the  prisoner  and  Lister  were 
in  1864  in  partnership,  and  carried  on  a  part  of  the  partnership  busi- 
ness at  Urbigau,  in  Saxony,  by  there  selling  patent  machines  ;  that  the 
prisoner  had  given  notice  according  to  the  terms  of  the  partnership 
agreement  for  a  dissolution  of  the  partnership  between  himself  and  Lis- 
ter ;  and  that  upon  such  dissolution  an  account  was  to  be  taken  accord- 
ing to  the  partnership  agreement  of  the  partnership  property,  and  that 
according  to  it  such  property  would  be  divided  on  such  dissolution  in 
certain  proportions  between  the  prisoner  and  Lister  after  payment  of 
partnership  liabilities  ;  and  that  the  prisoner,  in  order  to  cheat  Lister, 
had  agreed  with  his  brother,  Joseph  Warburton,  who  managed  the 
partnership  business  at  Urbigau,  and  with  Pepys,  who  resided  at  Co- 
logne, to  make  it  appear  by  documents,  purporting  to  have  passed 
between  Pepys  and  Joseph  Warburton,  and  by  entries  in  the  partner- 
ship books  or  accounts,  made  under  the  superintendence  of  Joseph 
Warburton,  that  Pep3's  was  a  creditor  of  the  firm  for  moneys  advanced  ; 
and  that,  b}-  reason  of  such  documents  and  entries,  certain  partnership 
property  was  to  be  withdrawn  and  to  be  handed  to  Pepys  or  otherwise 


SECT.  II.]  REGINA    V.    WAUBCUTON. 


809 


abstracted  or  kept  back  so  as  to  be  clivulcnl  betwtcii  the  inisoii.  r  ai,.! 
Joseph  Warburton  and  Pepys,  tothe  exchisionof  Lister  from  any  ii.Ur- 
est  or  advantage  in  or  IVuiii  or  in  respect  of  it. 

The  jury,  upon  this  evidence,  found  the  prisoner  guilty  of  tiie  con- 
spiracy charged,  and  rightly  so  found  if  in  point  of  law  such  an  agrte- 
ment  made  by  a  partner  with  such  an  intent  to  defraud  his  partner  of 
partnership  property  and  to  exclude  him  entirely  from  any  inten-nl  in 
or  advantage  from  it  on  such  an  occasion,  that  is  to  say,  on  tla  taknig 
of  an  account  for  the  purpose  of  dividing  the  liartnership  property  on  u 
dissolution  of  the  partnership,  by  means  of  false  entries  in  the  partner- 
ship books,  and  false  documents  purporting  to  have  passed  with  u  Bup- 
posed  creditor  of  the  firm,  is  a  conspiracy  for  which  a  prisoner  can  be 
criminally  convicted. 

The  offence,  if  it  were  one,  was  fully  completed  before  the  passing 
of  31  &  32  Vict.  c.  116,  by  which  a  partner  can  be  criminally  convicted 
for  feloniously  stealing  partnership  properly. 

The  question  for  the  opinion  of  the  court  was  whether  the  verdict 
could  be  sustained  so  as  to  support  a  conviction  for  conspiracy  in  point 
of  law. 

Waddy  (  WhitaJcer  with  him)  for  the  prisoner.  To  constitute  a  con- 
spiracy' there  must  be  an  agreement  to  do  an  illegal  act  or  to  do  a  legal 
act  by  illegal  means.  See  Russell  on  Crimes,  4  th  ed.  vol.  iii.  p.  11  fi. 
Here  the  acts  agreed  upon,  although  doubtless  immoral,  are  not  illegal. 
If  the  agreement  had  been  carried  out,  the  prisoner  could  not  have 
been  sued  at  law  by  Lister,  nor  could  he  have  been  indicted  for  doing 
the  agreed  acts.  Lindley  on  Partnership,  2d  cd.  vol.  ii.  p.  85G.  It  is 
not  an  indictable  offence  for  one  partner  to  obtain  some  of  the  partner- 
ship mone}'  from  the  other  partners  by  means  of  a  fraudulent  misstate- 
ment of  existing  facts.  Reg.  v.  Evans,  Leigh  &  Cave,  252  ;  32  L.  J. 
(M.  C.)  88.  The  acts  contemplated  by  the  agreement  were,  therefore, 
neither  actionable  nor  criminal. 

[CocKBURN,  C  J.  Even  assuming  that  no  action  or  indictment  would 
lie  for  such  acts,  the  acts  are  wrongful  nevertheless,  and  there  is  a 
remed}',  viz.,  b}'  proceedings  in  equity.] 

An  act  which  merely  gives  a  right  to  proceed  in  equity  is  not  an 
illegal  act  within  the  meaning  of  the  definitions  of  conspiracy. 

Maule,  Q.  C.  {Nathan  with  him),  for  the  prosecution  was  not  called 
upon. 

CocKBURN,  C.  J.  It  has  been  doubted  sometimes  whether  the  law  <.f 
England  does  not  go  too  far  in  treating  as  conspiracies  agreements  :  - 
do  acts  wliich,  if  done,  would  not  be  criminal  offences.  This  (juls- 
tion  does  not,  however,  arise  here,  as  no  one  would  wish  to  restrict  the 
law  so  that  it  should  not  include  a  case  like  the  present  It  is  suflicient 
to  constitute  a  conspiracy  if  two  or  more  persons  combine  by  fraud  and 
false  pretences  to  injure  another.  See  Russell  on  Crimes,  4th  ed. 
vol.  iii.  p.  116.  It  is  not  necessary  in  order  to  constitute  a  conspiracy 
that  the  acts  agreed  to  be  done  should  be  acts  which  if  done  would  be 


810  COMMONWEALTH    V.    PRIUS.  [CILVP.  XVIIL 

criminal.  It  is  enough  if  the  acts  agreed  to  be  done,  although  not 
criminal,  are  wrongful,  i.  e.,  amount  to  a  civil  wrong.  Here  there  was 
undoubtedly  an  agreement  with  reference  to  the  division  of  the  partner- 
ship property  or  of  the  partnership  profits.  It  is  equally  clear  that  the 
ao-reement  was  to  commit  a  civil  wrong,  because  the  agreement  was  to 
deprive  the  prisoner's  partuer  by  fraud  and  false  pretences  of  his  just 
share  of  the  property  or  profits  of  the  partnership.  A  civil  wrong  was 
therefore  intended  to  Lister.  The  facts  of  this  case  thus  fall  within 
the  rule  that  when  two  fraudulently  combine,  the  agreement  may  be 
criminal,  although  if  the  agreement  were  carried  out  no  crime  would  be 
committed,  but  a  civil  wrong  only  would  be  inflicted  on  a  third  party. 
In  this  case  the  object  of  the  agreement  was,  perhaps,  not  criminal. 
It  is  not  necessary  to  decide  whether  or  not  it  was  criminal ;  it  was, 
however,  a  conspiracy,  as  the  object  was  to  commit  a  civil  wrong  by 
fraud  and  false  pretences,  and  I  think  that  the  conviction  should  be 
aflirmed. 

Channell  and  Cleasby,  BB.,  Keating  and  Brett,  JJ.,  concurred. 

Conviction  affirmed. 


COMMONWEALTH   y.    PRIUS. 
Supreme  Judicial  Court  of  Massachusetts.     1857. 

[Reported  9  Gray,  127.] 

The  second  count  of  this  indictment  alleged  that  the  defendants,  on 
the  1st  of  March,  1856,  owning  a  stock  of  goods  in  Lowell  as  partners, 
and  having  insurance  thereon  against  fire  by  certain  insurance  com- 
panies named  in  the  indictment,  amounting  in  all  to  the  sum  of  $10,000, 
'*  did  then  and  there  corruptly,  wickedl}',  and  unlawfully  confederate, 
agree,  combine,  and  conspire  together,  to  insure  and  cause  to  be  in- 
sured on  said  stock"  certain  other  sums,  amounting  to  $10,000  more, 
in  other  companies  named,  "  by  then  and  there  falselj'  pretending  that 
said  stock  so  b}'  said  firm  kept  and  used  in  their  said  business  was  then 
and  there  of  a  much  greater  value  than  twenty  thousand  dollars ;  and 
as  a  part  of  said  unlawful  agreement"  the  defendants  "  did  then  and 
there  corrupth',  wickedly,  and  unlawfully  confederate,  agree,  combine, 
and  conspire  together  to  obtain  from  all  said  insurance  companies  as 
and  for  a  loss  to  a  large  amount,  to  wit,  twenty  thousand  dollars,  b}- 
means  of  false  pretences  of  a  loss  thereafterward  to  happen,  with  de- 
sign, under  pretence  of  a  loss,  to  cheat  and  defraud  all  said  insurance 
companies  and  each  one  of  them  of  their  moneys  by  means  of  said 
false  pretences  ;  against  the  peace  of  said  Commonwealth,  and  contrar}' 
to  the  form  of  the  statute  in  such  case  made  and  provided." 

The  defendants,  being  convicted  in  the  Court  of  Common  Pleas  on 
this  count,  moved  in   arrest  of  judgment,  that  no  offence  was  alleged 


SECT.  II.]  SMITH    V.    PEOI'LK.  'gll 

therein.  Sanger,  J.,  overruled  tl>o  motion,  .ind  the  ck-fcndunts  allegt-d 
exceptions, 

T.   Wenttoorth  &  P.  Ilaggerty,  fur  the  (K'ftn.lantH. 

J.  H.  Clifford  (Attorney-Gencnil),  for  ttit:  C'uimuonweultii. 

BicKi.ow,  J.  The  second  count  in  thr  iiidicliucnt,  on  which  oloiic 
the  defendants  were  found  guilty,  is  fatally  defective.  It  was  not  a. 
crime  in  the  defendants  to  procure  an  over-insurance  on  their  Bl^K-k  in 
trade.  It  was  at  most  only  a  civil  wrong.  Tiie  (;h:irge  of  a  conspiracv 
to  do  so  docs  not  therefore  amount  to  a  criminal  olTenec.  It  wiui  not'a 
combination  to  effect  an  unlawful  purpose,  and  no  unlawful  inoaUH  hv 
which  the  purpose  was  to  be  eflected  are  set  out  in  the  in<lictiiient. 

The  residue  of  the  count  is  too  uncertain  and  indelinile  to  fitipiKjrt  i 
conviction.  It  amounts  to  nothing  more  than  an  allegalion  of  a  ton- 
spiracy  to  cheat  and  defraud  the  insurance  companies,  which  is  clearly 
insulRcient.  Commonwealth  v.  Shedd,  7  Cush.  oil.  The  means  by 
which  this  purpose  was  to  be  effected  are  not  statecl  with  such  precision 
and  certainty  as  to  show  that  they  were  unlawful.  The  false  pretences 
by  which  money  was  to  be  obtained  from  the  insurance  companies  arc 
not  set  out;  and  the  charge  of  a  conspirac}'  "to  obtain  money  b)- 
means  of  false  pretences  of  a  loss  thereafterward  to  happen,"  is  alto- 
gether too  general  and  vague  a  statement  to  come  within  the  rules  of 
criminal  pleading.^  Judgment  arrested. 


SMITH   V.   PEOPLE. 
Supreme  Court  of  Illinois.     18^0. 

[Reported  25  Illinois,  17.] 

This  indictment,  filed  at  the  April  Term,  a.  v.  18G0,  of  the  Re- 
corder's Court,  of  the  city  of  Chicago,  contains  two  counts  for 
conspirac}'. 

The  first  count  charges,  that  Charles  H.  Schwab,  John  B.  Smith,  and 
Mary  C.  Allen,  on  the  first  day  of  March,  a.  u.  1800,  at  Chicago,  did. 
between  themselves,  unlawfully  conspire,  combine,  confederate,  and 
agree  together,  wickedly,  knowingly,  and  designedly,  to  procure,  by  false 
pretences,  false  representations,  and  other  fraudulent  means,  one  Lizzie 
M.  Engles  to  have  illicit  carnal  connection  with  a  man,  to  wit,  with 
the  said  Charles  H.  Schwab,  one  of  the  defendants  aforesaid. 

The  second  count  charges,  that  the  defendants  did,  then  and  there, 
(on  the  same  day)  unlawfully  between  themselves,  combine,  confederaK*. 
and  agree  together  wickedly,  knowingly,  and  designedly,  to  cause  and 
procure,  by  false  pretences,  false  representations,  and  other  fraudulent 
means,  one  Lizzie  M.  Engles,  then  and  there  a  minor  female  child,  of 

J  But  sec  Com.  V.  Fuller,  13:.>  .Mxsa.  :<f>3.  —  Va>. 


812  SMITH   V.   PEOPLE.  [CHAP.  XVIIL 

the  age  of  sixteen,  to  have  illicit  carnal  connection  with  a  man,  to  wit, 
with  the  aforesaid  Charles  H.  Schwab. 

To  this  indictment  the  plaintiffs  in  error  pleaded  not  guilty,  in  proper 
person.^ 

The  jury  returned  with  a  verdict  of  guilty  as  to  all  of  the  defendants. 
And  the  defendants  Smith  and  Schwab  moved  in  arrest  of  judgment, 
which  motion  was  overruled.  The  Recorder  then  proceeded  to  sentence 
defendants  Smith  and  Schwab  each  to  the  City  Bridewell,  for  the  term 
of  six  months,  or  to  pa}'  a  fine  of  8100,  and  one-third  costs  of  prosecu- 
tion, and  the  defendant  Allen  to  be  impnsoned  in  the  City  Bridewell 
three  months. 

The  errors  assigned  were  that :  There  is  no  indictable  offence  set 
forth  in  the  indictment  The  court  erred  in  refusing  to  arrest  the 
judgment.^ 

Caton,  C.  J.  To  attempt  to  define  the  limit  or  extent  of  the  law  of 
conspirac}',  as  deducible  from  the  English  decisions,  would  be  a  difficult 
if  not  an  impracticable  task,  and  we  shall  not  attempt  it  at  the  present 
time.  AVe  may  safely  assume  that  it  is  indictable  to  conspire  to  do  an 
unlawful  act  by  any  means,  and  also  that  it  is  indictable  to  conspire  to 
do  an}'  act  by  unlawful  means.  In  the  former  case  it  is  not  necessar}' 
to  set  out  the  means  used,  while  in  the  latter  it  is,  as  they  must  be 
shown  to  be  unlawful.  But  the  great  uncertainty,  if  we  may  be  allowed 
the  expression,  is  as  to  what  constitutes  an  unlawful  end,  to  conspire 
to  accomplish  which  is  indictable  without  regard  to  the  means  to  be 
used  in  its  accomplishment.  And  again,  what  means  are  unlawful  to 
accomplish  a  purpose  not  in  itself  unlawful.  As  this  indictment  falls 
under  the  first  class,  we  shall  confine  ourselves  to  that.  If  the  term 
unlawful  means  criminal,  or  an  offence  against  the  criminal  law,  and  as 
such  punishable,  then  the  objection  taken  to  this  indictment  is  good, 
for  seduction  by  our  law  is  not  indictable  and  punishable  as  a  crime. 
But  by  the  common  law  governing  conspiracies  the  term  is  not  so 
limited,  and  numerous  cases  are  to  be  found  where  convictions  have 
been  sustained  for  conspiracy  to  do  unlawful  acts,  although  those  acts 
arc  not  punishable  as  crimes.  Nor  3'et  would  it  be  quite  safe  to  say 
that  the  term  unlawful  as  here  used  includes  every  act  which  violates 
the  legal  rights  of  another,  giving  that  other  a  right  of  action  for  a  civil 
remedy.  And  we  are  not  now  prepared  to  say  where  the  line  can  be 
safel}'  drawn.  It  is  sufficient  for  the  present  case,  to  say  that  conspira- 
cies to  accomplish  purposes  which  are  not  b}'  law  punishable  as  crimes, 
but  which  are  unlawful  as  violative  of  the  rights  of  individuals,  and  for 
which  the  civil  law  will  afford  a  remedy  to  the  injured  part}',  and  will 
at  the  same  time  and  by  the  same  process  punish  the  offender  for  the 
wrong  and  outrage  done  to  society,  by  giving  exemplary  damages, 
beyond  the  damages  actually  proved,  have  in  nuraei'ous  instances  been 
sustained  as  common  law  offences.    The  law  does  not  punish  criminally 

1  The  evidence  and  requests  to  charge  are  omitted. 
■^  The  other  assignments  of  error  are  omitted. 


SECT.  li.]  SMTH   V.    PEOPLE. 


813 


every  unlawful  act,  although  it  may  be  a  gricvou.s  onTcnce  to  sock-ty. 
And  in  determining  what  sort  of  conspiracies  may  or  may  not  be 
entered  into  without  committing  an  om-nce  i)uni,shu).le  by  the  common 
law,  regard  must  be  had  to  the  inlluence  which  the  act,  if  done,  would 
actually  have  upon  society,  witliout  confining  tlic  in<iuiiy  to  the  question 
whether  the  act  might  itself  subject  the  olfender  to  criminal  puiiishmont. 
And  most  prominent  among  the  acts  branded  as  unlawful,  altliou^'h  not 
punishable  as  crimes,  is  the  very  act,  to  accomplish  which  this  con- 
spiracy is  charged  to  have  been  entered  into.  Il  is  more  destructive 
of  the  happiness  of  individuals  and  of  the  well-being  of  society,  than 
very  many  others  which  are  punishable  as  crimes,  and  the  law  has  ever 
favored  its  punishment  by  exemplary  damages  to  the  parent,  guardian 
or  master  of  the  victim  of  seduction,  although  he  is  often  regarded  as 
the  injured  party  by  the  merest  technicality.  To  say  that  it  is  innocent, 
or  not  a  crime,  for  parties  to  band  and  conspire  together  to  accomplish 
the  destruction,  by  seduction,  of  any  young  girl  in  the  community,  un- 
less it  can  be  shown  that  the  means  to  be  used  are  unlawful,  and  then 
bold  that  such  unlawful  means  must  of  themselves  be  criminal  and  pim- 
jshable  as  such,  would  be  giving  a  legal  sanction  and  encouragement  to 
such  conspiracies.  Under  such  decisions  the  courts,  instead  of  being 
the  guardians  of  the  peace  and  happiness  and  well-being  of  society, 
would  lend  their  sanction  to  its  worst  enemies.  If  there  be  any  act 
which  should  be  regarded  as  unlawful  in  the  sense  of  the  law  of  con- 
spiracy, but  which  is  not  punishable  as  a  crime,  it  is  this  very  act,  ami 
so  it  has  been  and  ever  should  be  regarded  by  the  courts.  We  do  not 
hesitate  to  hold  that  a  conspiracy  to  accomplish  such  an  object  as  this, 
whether  the  means  to  be  used  be  unlawful  or  criminal  or  not,  is  a  crime 
at  the  common  law,  and  that  it  is  the  duty  of  the  courts  to  protect 
society  against  such  conspiracies  by  their  punishment.  If  the  laws  of 
the  land  will  not  afford  such  protection,  then  individuals  will  protect 
themselves  by  violence,  for  it  is  not  in  human  nature  to  let  such 
offences  go  unpunished  in  some  way.  Counsel  say,  in  argument,  that 
if  we  sustain  this  conviction  no  man  in  community  can  repose  in  secu- 
rity. We  answer,  no  man  who  will  enter  into  a  conspiracy  to  accom- 
plish so  nefarious  a  purpose  as  this,  should  be  allowed  to  repose  in 
security ;  and  if  parties  who  thus  offend  are  allowed  to  do  so,  then 
innocent  and  useful  members  of  society  cannot.  We  hold  that  it  was 
not  necessary  to  show  that  the  means  to  be  used  by  the  conspirators 
were  unlawful  or  criminal. 

The  objection  that  this  being  but  a  common  law  offence,  is  not  pun- 
ishable in  this  State,  where  we  have  a  criminal  code  defining  most 
criminal  offences  and  prescribing  their  punishment,  is  answered  by  the 
case  of  Johnson  v.  The  People,  22  111.  314.  It  is  there  shown,  that 
our  criminal  code  prescribes  punishment  for  offences  not  cnumeruteil, 
which  can  mean  nothing  but  common  law  offences,  showing  conclusively 
that  it  was  not  the  intention  of  the  legislature  to  repeal  that  iwrtion  of 
the  common  law  by  implication. 


814  COMMONWEALTH   V.   KOSTENBAUDER,  [CHAP,  XVIII. 

"We  do  not  deem  it  necessaiy  to  review  the  instructions  in  detail. 
We  have  examined  them  and  the  questions  made  upon  them,  and  find 
no  error  committed  by  the  court  in  the  instructions ;  nor  do  we  think 
that  the  verdict  was  unsustained  by  the  proof.  The  judgment  is 
affirmed.  Judgment  affirmed. 


COMMONWEALTH   v.  KOSTENBAUDER. 
Supreme  Court  of  Pennsylvaxia.     1886. 

[Reported  20  Atlantic  Reporter,  995.] 

Certiorari  to  Court  of  Quarter  Sessions,  Lehigh  County. 

Kostenbauder,  Houck,  and  Schweitzer  induced  Boehmer,  a  saloon- 
keeper, to  give  them  liquor  on  Sunday.  Later  Boehmer  was  sued  for  a 
violation  of  the  law,  in  which  proceeding  Kostenbauder,  Houck,  and 
Schweitzer  appear  as  witnesses  against  him.  Boehmer,  then  alleging 
that  there  had  been  a  full  understanding  between  the  three  to  procure 
from  him  the  liquor  and  then  proceed  against  him  in  order  that  they 
might  get  the  share  coming  to  the  informer  in  such  cases,  made  an 
information  against  Kostenbauder,  Houck,  and  Schweitzer,  and  had 
them  arrested  for  conspiracy.  Upon  return  of  the  prosecution  to  the 
Court  of  Quarter  Sessions  an  indictment  was  drawn  and  presented  to 
the  grand  jury,  which  returned  "a  true  bill,"  whereupon  the  defen- 
dants moved  to  quash  the  bill  of  indictment,  on  the  ground  that  it  did 
not  charge  an  indictable  offence.  The  court  held  that  no  indictable 
offence  was  charged,  and  quashed  the  indictment.  The  following  is  a 
copy  of  the  opinion  of  the  Quarter  Sessions  :  — 

"Albright,  P.J.  If  the  law  provided  for  the  punishment  of  the 
man  who,  on  Sunday,  buys  or  drinks,  at  a  licensed  public  house,  intox- 
icating liquor,  then  these  defendants  could  be  held  to  answer  this  indict- 
ment ;  but,  inasmuch  as  the  man  who  bu^s  or  drinks  the  liquor  is  not 
punishable,  therefore  the  defendants  cannot  be  held  liable  for  conspiracy 
to  procure  beer  on  Sunday  from  the  saloon-keepers  named  in  the  indict- 
ment. The  law  imposes  the  penalty  on  him  who  sells  liquor  on  Sun- 
day, or  who,  being  a  licensed  public-house  keeper,  permits  it  to  be 
drank  on  his  premises  on  that  day.  The  real  offence  charged  in  this 
indictment  is  the  conspiracy  b}'  these  three  defendants  to  induce  the 
saloon-keeper  to  sell  or  give  them  drinks  on  Sunday.  The  further  alle- 
gations, that  drink  was  obtained ;  that  it  was  the  intention  of  getting 
the  informer's  share  of  the  penalties ;  and  that  suits  were  brought  for 
the  penalties,  —  add  no  strength  to  the  charge.  It  was  not  unlawful 
to  accept  the  drink,  nor  to  sue  for  the  penalties.  Counsel  for  the  Com- 
monwealth and  for  defendants  agree  that  this  is,  in  point  of  law,  the 
correct  view  of  the  question.  It  is  impossible  to  hold  that  persons  are 
guilty  in  law  for  conspiring  to  do  an  act,  where  the  act  imputed  is  such 


SECT.  II.]  COMMONWEALTH   V.    KuSTENBAUDEB.  815 

that  if  the  intention  had  been  consmuinated  no  oflfenco  would  l»uve 
been  committed.  11.  is  not  alleged  that  the  dufundanLs  hy  fiiriiishin|4 
a  stock  of  liquor,  oi  by  any  other  means,  instigated  or  rurlhcrcd  the 
illegal  act  of  selling  or  giving  away  on  Sunday,  nor  lliat  ihcy  conhj.irt'd 
by  force  or  threats  to  coerce  the  saloon-keepers  to  sell.  The  latter  were 
free  agents.  They  sold  or  gave  away  the  beer  because  they  ehoHe  to  do 
so.  Where  there  is  a  confederacy,  but  nothing  more  th:m  solieilaiionu 
to  an  intelligent  free  agent  to  commit  a  crime,  it  is  not  indictable 
unless  it  is  made  so  by  statute.  2  Wliart.  Crim.  I.aw  (Mih  ed. ),  §  2(;iM. 
Chief  Justice  Gibson,  in  Shannon  v.  Com.,  11  I'a.  22G,  said  lliat  if 
confederacy  constituted  conspiracy,  without  regard  to  the  qualitv  of 
the  act  to  be  done,  a  party  might  incur  the  guilt  of  it  i>y  having  agree<l 
to  be  the  passive  subject  of  a  battery.  Accordingly  these  delendnniH 
would  not  have  been  indictable  if  they  had  combined  and  agrei-d  to- 
gether to  go  to  the  prosecutor's  house  and  solicit  and  induce  him  lo 
beat  them.  They  are  not  indictable  for  having  conspired  to  induce 
him  to  give  to  them  drinks  on  Sunday.  Counsel  for  the  Con)moiiweallh 
rely  principall}'  u})on  the  case  of  Ilazen  v.  Com.,  23  Pa.  Ij.O.j.  It  la 
asserted  that  it  was  there  held  that  llazen  and  three  others  had  been 
properly  convicted  upon  an  indictment  charging  that  they  had  con- 
spired to  solicit,  induce,  and  procure  the  ollicers  of  a  bank  to  violate  a 
statute  which  made  it  a  penal  offence  to  issue  notes  of  banks  of  other 
states,  of  a  denomination  less  than  five  dollars.  The  statute  gave 
the  informer  the  one-half  of  the  money  penalty.  But  the  coiuits  upon 
which  Hazen  and  his  co-defendants  were  convicted  charged  more  than 
the  mere  conspiracy  to  procure  the  bank  officers  to  issue  the  forbi«lden 
notes.  It  was  also  charged,  and  found,  that  one  of  them  had  depos- 
ited in  the  bank  large  sums  of  money,  not  for  lawful  i)usincss,  and 
drew  them  by  checks  for  unequal  sums,  and  required  the  checks  to  be 
paid  in  bank-notes  of  less  than  $o,  and  that  the  defendants  had  threat- 
ened to  bring  penal  actions  unless  they  were  paid  §3,2.00  ;  that  it  was 
the  purpose  of  the  conspiracy  to  compel  the  bank  ollicers  unjustly  and 
unlawfully  to  pay  large  sums  of  money  for  the  corrupt  gain  of  tlie 
defendants.  The  Supreme  Court  said  that  they  were  left  to  infer  that 
such  '  large  sums  of  money '  were  to  be  obtained  by  some  other  means 
than  a  fair  prosecution  of  the  offending  bank  officers;  that  it  was 
charged  that  the  money  was  to  be  drawn  from  the  victims  by  com- 
pounding the  offences ;  that  it  had  been  found  as  a  fact  that  the  object 
of  the  defendants  was  not  the  detection  and  suppression  of  crime,  but 
the  promotion  of  their  own  corrupt  gain ;  that  the  ilefendants  souglit 
to  extort  'hush  money'  for  suppressing  the  evidence  of  guilL  The 
court  also  said  that  those  who  induced  a  violation  of  the  law  for  the 
purpose  of  compounding  the  offence  and  making  gain  by  defealinjj 
public  justice  were  guilty  of  a  gross  wrong.  In  this  case  it  is  not 
averred  that  the  defendants  offered  to  settle  or  com|>ound  the  otrcnccs, 
nor  that  they  obtained  any  part  of  the  informer's  share  of  the  penal- 
ties, nor  even  that  the  suits  against  the  saloon-keepers  were  prosecuted 


816  CONSPIRACY   AND   OTHER   OFFENCES.  [cHAP.  XVIII. 

to  judgment.  In  that  reference  it  is  simply  alleged  that  the  defen- 
dants, and  others  acting  with  them,  have  caused  writs  of  summons  to  be 
issued  by  the  aldermen  for  the  penalty  of  S50  in  each  case.  The  deci- 
sion of  the  question  presented  in  Hazen  v.  Com.  does  not  warrant  a 
ruling  that  this  indictment  can  be  sustained,  nor  has  any  authority  for 
such  a  conclusion  been  found.  The  motion  to  quash  must  be  sustained. 
If  counsel  for  the  Commonwealth  desire  to  obtain  the  decision  of  the 
Supreme  Court  upon  this  question,  it  is  probable  that  this  court,  upon 
application  of  the  district  attorney,  will  make  an  order  that  the  defen- 
dants be  held  under  bail  until  such  decision  has  been  obtained.  They 
r^e  now  under  recognizance  for  their  appearance  at  the  next  term. 
ISow,  December  26,  1885,  the  indictment  is  quashed  ;  the  recognizance 
of  defendants  to  remain  in  force  unless  discharged  by  order  of  the 
court." 

J.  MarshallWright,  Dist.  Atty.,  Eenyiinger  &  De  Walt,  and  K  J. 
lAchtenwalner,  for  the  Commonwealth. 

John   C.  Merrill  and  Charles   R.   James,   for   Kostenbauder   and 
Houck. 

W.  J.  Stein,  for  Schweitzer. 

Per  Curiam.     The  judgment  of  the  court  below  is  aflfirmed  by  a 
divided  court. 


SECTION  III. 

Conspiracy  and  other  Offences  against  Trade. 

Ordinance  for  bakers,  «&c.,  c.  10.*  Be  it  commanded  on  the  behalf  of 
our  Lord  the  King,  that  no  forestaller  be  suffered  to  dwell  in  any  town, 
which  is  an  open  oppressor  of  poor  people,  and  of  all  the  commonalty, 
and  an  enemy  of  the  whole  shire  and  country,  which  for  greediness  of 
his  private  gain  doth  prevent  others  in  bujing  grain,  fish,  herring  or 
any  other  thing  to  be  sold  coming  by  land  or  water,  oppressing  the 
poor  and  deceiving  the  rich,  which  carrieth  away  such  things,  intend- 
ing to  sell  them  more  dear  ;  the  which  come  to  merchants  stranger  that 
bring  merchandise  offering  them  to  buy,  and  informing  them  that  their 
goods  might  be  dearer  sold  than  they  intended  to  sell,  and  an  whole 
town  or  a  country  is  deceived  by  such  craft  and  subtlety.  He  tliat  is 
convict  thereof  the  first  time  shall  be  amerced,  and  shall  lose  the  thing 
so  bought,  and  that  according  to  the  custom  and  ordinance  of  the  town  ; 
he  that  is  convict  the  second  time  shall  have  judgment  of  the  pillory ; 
at  the  third  time  he  shall  be  imprisoned  and  make  fine ;  the  fourth  time 

1  Published  daring  the  thirteenth  century ;  the  exact  date  is  uncertain.  —  Ed. 


SECT.  III.]  ARTICLES   OF   INQUEST. 


817 


he  shall  aDjure  the  town.  And  this  judgment  shall  he  given  ij|v,n  nil 
manner  of  forestallers,  and  likewise  upon  them  that  have  given  ihera 
counsel,  help,  or  favor. 


ARTICLES  OF   INQUEST. 
All  the  Justices.     1352. 

[Reported  Lib.  Assis.  L38,  ;;/.  44.] 

These  are  the  artieles  which  are  to  he  inquired  of  by  the  Infjiiom  of 
Office  in  the  King's  Bench,  summoned  to  imjuire  of  homiuides,  thievcn, 
burners  of  houses,  ravishers  of  women,  and  of  all  manner  of  felons  and 
of  felonies,  and  their  receivers,  procurers,  and  maintaincrs.  as  well  in 
the  time  of  the  King's  father,  as  in  the  time  of  the  King  who  now  is,  of 
escapes  of  thieves,  &c.  .  .  . 

Likewise  of  those  who  bind  others  by  their  robes  or  fees  to  conceal 
the  truth,  and  to  maintain  their  evil  emprises,  &c.  And  nofe,  that 
two  were  indicted  for  confederacy,  each  of  them  to  maintain  the  othi-r, 
whether  their  cause  were  true  or  false;  and  notwithstaixling  notliing 
was  alleged  to  be  put  in  motion,  the  paities  were  held  to  answer, 
because  this  thing  is  forbidden  by  the  law,  «fec. 

Likewise  of  conspirators,  and  confederates,  who  bind  themselves 
together  by  oath,  covenant,  or  some  other  alliance,  that  each  of  them 
will  aid  and  sustain  the  other's  emprise,  be  it  false  or  true ;  and  who 
falseh'  have  persons  indicted  or  acquitted,  or  falselv  bring  or  maintam 
pleas,  b}'  means  of  alliance,  &c.  .  .  . 

Likewise  of  forestallers  of  victual,  and  of  purve3'ors  of  victual  with- 
out being  dul}'  appraised  b}-  the  vill,  or  those  who  take  them  without 
making  a  bargain  with  the  persons  from  whom  they  take  them.  accf»rd- 
ing  to  the  statute  in  such  case  provided.  .  .  .  Likewise  of  mereliant« 
who  by  covin  and  alliance  among  themselves  from  year  to  year  put  a 
certain  price  on  wool  which  is  for  sale  in  the  country,  so  that  none  of 
them  will  buy  or  overbid  another  in  buying  wool  beyond  the  certain  i»ric€ 
which  they  themselves  have  ordained  :  to  the  great  impoverishment  of 
the  people,  «fec.  .  .   . 

Likewise  of  all  manner  of  oppressions  and  grievances  done  to  the 
people  of  our  Lord  the  King. 


&2 


818  THE   LOMBARD'S   CASE.  [CHAP.  XVIIl. 


THE  LOMBARD'S   CASE. 
London  Assizes.     1368. 

[Reported  Lib.  Assis.  276,  pi.  38.] 

A  Lombard  was  iudicted  in  London  for  concealing  the  customs  of 
our  Lord  the  King,  and  for  divers  other  things  ;  and  presentment  was 
also  made  against  him,  that  he  had  procured  and  promoted  the  enhanc- 
ing of  the  price  of  merchandize.  And  judgment  for  him  was  praj'ed 
because  this  was  not  forestalling,  nor  could  it  sound  in  forestalling ; 
and  since  it  did  not  appear  from  the  presentment  that  any  wrong  was 
actually  done,  he  should  not  be  held  to  answer.  And  7ion  allocatur  ; 
for  Knivet  said,  that  certain  persons  (whom  he  named)  came  into  the 
neighborhood  of  Cotes  wold,  and  in  deceit  of  the  people  said  that  no 
wool  could  cross  the  sea  in  the  next  year,  there  were  so  many  wars  in 
those  parts ;  by  which  they  depressed  the  price  of  wool.  And  they 
were  brought  before  the  King's  Council,  and  could  not  deny  it ;  where- 
fore the}'  were  put  to  fine  and  ransom  before  the  King. 

And  so  in  this  case.    Wherefore  he  pleaded  not  guilty,  &c. 

Coke,  3rd  Institute,  196.  It  was  upon  conference  and  mature  delibera- 
tion resolved  by  all  the  justices,  that  any  merchant,  subject  or  stranger, 
bringing  victuals  or  merchandize  into  this  realme,  may  sell  them  in 
grosse  ;  but  that  vendee  cannot  sell  them  againe  in  grosse,  for  then  he 
is  an  ingrosser  according  to  the  nature  of  the  word,  for  that  he  buy 
ingrosse  and  sell  ingrosse,  and  ma}'  be  indicted  thereof  at  the  common 
law.  as  for  an  offence  that  is  malum  in  se.  2.  That  no  merchant  or 
other  may  buy  within  the  realme  any  victuall  or  other  merchandize  in 
grosse,  and  sell  the  same  in  grosse  againe,  for  then  he  is  an  ingrosser, 
and  punishable  iit  supra  ;  for  by  this  means  the  prices  of  victuals  and 
other  merchandize  shall  be  inhaunced,  to  the  grievance  of  the  subject ; 
for  the  more  hands  they  passe  through,  the  dearer  they  grow,  for  every 
one  thirsteth  after  gaine,  vitiosum  sitiunt  lucrum.  And  if  these  things 
were  lawfull,  a  riche  man  might  ingrosse  into  his  hands  all  a  commodity 
and  sell  the  same  at  what  price  he  will.  And  ever}'  practice  or  device 
by  act,  conspiracy',  words  or  newes,  to  inhaunce  the  price  of  victuals  oi 
other  merchandize,  was  punishable  b}-  law  ;  and  they  relied  much  upon 
the  statute  aforesaid,  nullus  forstallarlus.,  &c.,  which  see  before  in 
this  chapter ;  and  that  the  name  of  an  ingrosser  in  the  reigne  of 
H.  3  and  E.  1  was  not  known,  but  comprehended  within  this  word 
[^forstallarius']  lucrum  sitiens  vitiosum  ;  and  ingrossing  is  a  branch  of 
forestalling.  And  for  that  forstallarius  was  pauperum  depressor,  et 
totius  commicnitatis  et  patriae  publicus  inimicus,  he  was  punishable 
by  the  common  law. 

7  &  8  Vict.  c.  24,  sects.  1,  4.  Be  it  enacted,  &c.  .  .  .  that  after  the 
passing  of  this  Act  the  several  offences  of  badgering,  engrossing,  fore- 


SECT.  III.]  THE    LOMBARD'S    CASE. 


819 


stalling,  and  rcgrating  be  utterly  taken  away  and  aholisbed,  and  that 
no  information,  indictment,  suit,  or  prosecution  shall  lie  either  at  com- 
mon law  or  by  virtue  of  any  statute,  or  be  commenced  or  i)rosecuted 
against  any  person  for  or  by  reason  of  any  of  the  said  offences  or 
supposed  offences.^ 

Provided  always,  and  be  it  enacted,  that  nothing  in  tiiis  Act  con- 
tained  shall  be  construed  to  ai)[)ly  to  the  otlenci;  of  knowingly  aii<l 
fraudulently  spreading  or  conspiring  to  spread  any  false  rumor,  witli 
intent  to  enhance  or  decry  the  price  of  any  goods  or  merchamlize,  or  t<. 
the  offence  of  preventing  or  endeavoring  to  i)rcvent  by  force  or  tlnvals 
any  goods,  wares,  or  merchandize  l)eing  brouglit.  to  any  fair  or  market, 
but  that  every  such  offence  may  be  inquired  of,  tried,  ami  punished  as 
if  this  Act  had  not  been  made. 

23  Ed.  3,  c.  1,  2.  [Statute  of  Laborers.]  Every  man  and  woman 
of  our  realm  of  England,  of  what  condition  he  be,  free  or  bond,  able  in 
body,  and  within  the  age  of  threescore  years,  not  living  in  merclnunlize, 
nor  exercising  any  craft,  nor  having  of  his  own  whereof  he  may  live, 
nor  proper  land,  about  whose  tillage  he  may  himself  occupy,  and  not 
serving  any  other,  if  he  in  convenient  service  (his  estate  considered)  l>e 
required  to  serve,  he  shall  be  bounden  to  serve  him  which  so  shall  him 
require.  And  take  only  the  wages,  livery,  meed,  or  salary,  which  were 
accustomed  to  be  given  in  the  places  where  he  oweth  to  serve,  the  x.v 
year  of  our  reigne  of  England,  or  five  or  six  other  common  years  next 
before.  .  .  . 

Item,  if  an}'  reaper,  mower,  or  other  workman  or  servant,  of  what 
estate  or  condition  that  he  be,  retained  in  any  man's  service,  do  depart 
from  the  said  service  without  reasonable  cause  or  licence,  before  tiu; 
term  agreed,  he  shall  have  pain  of  imprisonment.  And  that  none  under 
the  same  pain  presume  to  receive  or  retain  any  such  in  his  service. - 

5  Eliz.  c.  4,  sects.  5,  6.  And  be  it  further  enacted,  that  no  person 
which  shall  retain  an}'  servant  shall  put  away  his  or  her  said  servant, 
and  that  no  person  retained  according  to  this  statute  shall  depart  from 
his  master,  mistress  or  dame,  before  the  end  of  his  or  her  terni.  upon 
the  pain  hereafter  mentioned,  unless  it  be  for  some  reasonable  and 
sufficient  cause  or  matter  to  be  allowed  before  two  justices  of  peace,  or 
one  at  the  least,  within  the  said  county. 

And  that  no  such  master,  mistress  or  dame  shall  put  away  any  such 
servant  at  the  end  of  his  term,  or  that  any  sucii  servant  shall  depart 
from  his  said  master,  mistress  or  dame  at  the  end  of  his  term,  without 
one  quarter's  warnins:  eiven  before  the  end  of  his  said  term,  either  Itv 
the  said  master,  mistress  or  dame,  or  servant,  the  one  to  the  otiicr. 
upon  the  pain  hereafter  ensuing.^ 

1  See  Sect.  2  of  this  Act  for  a  list  of  the  statutes  dealing  witJi  these  subject."*  —  J^'»- 

2  This  statute  and  later  statutes  to  the  same  effect  were  modified  bj  5  ElU. 
c.  4.  — Ed 

3  Repealed  38  &  39  Vict.  c.  86,  sect.  17.  —  Ed. 


820  KEX   V.    TAILORS    OF    CAMBRIDGE,  [CHAP.  XVIIL 


REX  V.  JOURNEYMAN-TAILORS   OF   CAMBRIDGE. 
King's  Bench,     1721. 

[Reported  8  Modern,  10] 

One  "Wise,  and  several  other  journeyman-tailors,  of  or  in  the  town  of 
Cambridge,  were  indicted  for  a  conspiracy  amongst  themselves  to  raise 
their  wages,  and  were  found  guilty. 

It  was  moved  in  arrest  of  judgment  upon  several  errors  in  the  record. 

Thirdly,^  No  crime  appears  upon  the  face  of  this  indictment,  for  it 
only  charges  thom  with  a  conspiracy  and  refusal  to  work  at  so  much 
pe7'die)7i,  whereas  they  are  not  obliged  to  work  at  all  by  the  day  but  by 
the  year,  by  5  Eliz.  c.  4. 

It  was  answered,  that  the  refusal  to  work  was  not  the  crime,  but  the 
conspirac}'  to  raise  the  wages. 

The  Court,  The  indictment,  it  is  true,  sets  forth  that  the  defend- 
ants refused  to  work  under  the  wages  which  they  demanded  ;  but  al- 
though these  might  be  more  than  is  directed  by  the  statute,  yet  it  is  not 
for  the  refusing  to  work  but  for  conspiring  that  they  are  indicted,  and 
a  conspiracy  of  any  kind  is  illegal  altliough  the  matter  about  which 
they  conspired  might  have  been  lawful  for  them,  or  any  of  them,  to  do, 
if  they  had  not  conspired  to  do  it,  as  appears  in  the  case  of  The  Tub- 
women  V.  The  Brewers  of  London. 

Fifthly.  This  indictment  ought  to  conclude  contra  formam  statidi  ; 
for  by  the  late  statute  7  Geo.  I.  c.  13,  journeymen-tailors  are  prohib- 
ited to  enter  into  any  contract  or  agreement  for  advancing  their  wages, 
&c.  And  the  statute  of  2  &  3  Edw.  VI.  c.  15,  makes  such  persons 
criminal. 

It  was  answered  that  the  omission  in  not  concluding  this  indictment 
contra  formam  statuti  is  not  material,  because  it  is  for  a  conspiracy, 
which  is  an  offence  at  common  law.  It  is  true,  the  indictment  sets 
forth  that  the  defendants  refused  to  work  under  such  rates,  which  were 
more  than  enjoined  by  the  statute,  for  that  is  only  two  shillings  a 
day  ;  but  yet  these  words  will  not  bring  the  offence,  for  which  the 
defendants  are  indicted,  to  be  within  that  statute,  because  it  is  not  the 
denial  to  work  except  for  more  wages  than  is  allowed  by  the  statute, 
but  it  is  for  a  conspiracy  to  raise  their  wages,  for  which  these  defend- 
ants are  indicted.  It  is  true  it  does  not  appear  by  the  record  that  the 
wages  demanded  were  excessive,  but  that  is  not  material,  because  it 
may  be  given  in  evidence. 

The  Court,  This  indictment  need  not  conclude  contra  formam 
statuti,  because  it  is  for  a  conspiracy,  which  is  an  off'ence  at  common 
law. 

So  the  Judgment  was  confirmed  by  the  whole  court  quod  capiantur. 

1  The  first,  second,  and  fourth  objections  are  omitted. 


6E.C'i\  UI.J  COMMONWEALTH    V.    IIL'NT.  821 

COMMONWEALTH  v.  HI  NT. 
SuPEEME  Judicial  Coukt  ok  Massa*  iilsktis.      lKi2. 

[Reported  4  Metcalf,  1 1 1  .J 

Shaw,  C.  J.  The  counsel  for  Iho  (U'fen(l:ints  contended,  nnd  ro- 
quested  the  court  to  instruct  the  jury,  that  the  indictiiu'nl  did  not  set 
forth  any  agreement  to  do  a  criminal  act,  or  to  do  any  hiwfnl  act  l.y 
any  specified  criminal  means,  and  Hint  tlic  a^n-eenicnts  thirein  set  forth 
did  not  constitute  a  conspiracy  nidictabh'  liy  any  law  of  this  Common- 
wealth. But  the  judge  refused  so  to  do,  and  instructed  the  jury,  that 
the  indictment  did,  in  his  opinion,  describe  a  confederacy  amon«j  tin- 
defendants  to  do  an  unlawful  act,  and  to  effect  the  same'  hv  unlawfid 
means  ;  that  the  society,  organized  and  associated  for  the  purposes 
described  in  the  indictment,  was  an  unlawful  conspiracy,  against  the 
laws  of  this  Commonwealth  ;  and  that  if  the  jury  believed,  from  tho 
evidence  in  the  case,  that  the  defendants,  or  any  of  them,  had  engaged 
in  such  a  confederacy,  they  were  bound  to  find  such  of  them  guilty. 

We  are  here  carefully  to  distinguish  between  the  confederacy  set 
forth  in  the  indictment,  and  the  confederacy  or  association  contained  in 
the  constitution  of  the  Boston  Journeymen  Bootmakers'  Society,  as 
stated  in  the  little  printed  book,  which  was  admitted  as  evidence  on  the 
trial.  I^ecause,  though  it  was  thus  admitted  as  evidence,  it  would  not 
warrant  a  conviction  for  anything  not  stated  in  the  indictment.  It 
was  proof,  as  far  as  it  went,  to  support  the  averments  in  tlie  indictment. 
If  it  contained  any  criminal  matter  not  set  forth  in  the  indictment,  it  is 
of  no  avail.  The  question  then  presents  itself  in  the  same  form  as  on 
a  motion  in  arrest  of  judgment. 

The  first  count  set  forth,  that  the  defendants,  with  divers  otlu-rs 
unknown,  on  the  day  and  at  the  place  named,  being  workinm  and  jour- 
ne3'men,  in  the  art  and  occupation  of  bootmakers,  unlawfully,  perni- 
ciously and  deceitfully  designing  and  intending  to  continue,  keep  up. 
form,  and  unite  themselves,  into  an  unlawful  club,  society,  and  combina- 
tion, and  make  unlawful  by-laws,  rules,  and  orders,  among  themselves, 
and  thereby  govern  themselves  and  other  workmen,  in  the  said  art,  and 
unlawfully  and  unjustly  to  extort  great  suras  of  money  by  mcain 
thereof,  did  unlawfully  assemble  and  meet  together,  and  Iwing  so 
assembled,  did  unjustly  and  corruptly  conspire,  combine,  confederate, 
and  agree  together,  that  none  of  them  sliould  thereafter,  and  that  none 
of  them  would,  work  for  any  master  or  person  whatsoever,  in  the  said 
art,  mystery,  and  occupation,  who  should  employ  any  workman  or  jour- 
neyman, or  other  person,  in  the  said  art,  who  was  not  a  meml)cr  of 
said  club,  society,  or  combination,  after  notice  given  him  to  discharge 
such  workmen,  from  the  employ  of  such  master;  to  the  great  damag« 
and  oppression,  etc. 

1  Part  ouly  yf  the  opiuiou  a  given. 


32  2  COMMONWEALTH   V.   HUNT.  [CHAP.  XVIII. 

Now  it  is  to  be  considered,  that  the  preamble  and  introductory  mat- 
ter in  the  indictment  —  such  as  unlawfully  and  deceitfully  designing  and 
intending  unjustly  to  extort  great  sums,  etc.  — is  mere  recital,  and  not 
traversable,  and  therefore  cannot  aid  an  imperfect  averment  of  the 
facts  constituting  the  description  of  the  offence.  The  same  may  be 
said  of  the  concluding  matter,  which  follows  the  averment,  as  to  the 
great  damage  and  oppression  not  only  of  their  said  masters,  employing 
them  in  said  art  and  occupation,  but  also  of  divers  other  workmen  in 
the  same  art,  mystery,  and  occupation,  to  the  evil  example,  &c.  If  the 
facts  averred  constitute  the  crime,  these  are  properly  stated  as  the  legal 
inferences  to  be  drawn  from  them.  If  they  do  not  constitute  the  charge 
of  such  an  offence,  they  cannot  be  aided  by  these  alleged  consequences. 

Stripped  then  of  these  introductory  recitals  and  alleged  injurious 
consequences,  and  of  the  qualifying  epithets  attached  to  the  facts,  the 
averment  is  this ;  that  the  defendants  and  others  formed  themselves 
into  a  society,  and  agreed  not  to  work  for  any  person,  who  should 
emplov  any  journeyman  or  other  person,  not  a  member  of  such  society, 
after  notice  given  him  to  discharge  such  workman. 

The  manifest  intent  of  the  association  is,  to  induce  all  those  engaged 
in  the  same  occupation  to  become  members  of  it.  Such  a  purpose  is 
not  unlawful.  It  would  give  them  a  power  which  might  be  exerted  for 
useful  and  honorable  purposes,  or  for  dangerous  and  pernicious  ones. 
If  the  latter  were  the  real  and  actual  object,  and  susceptible  of  proof, 
it  should  have  been  specially  charged.  Such  an  association  might  be 
used  to  afford  each  other  assistance  in  times  of  poverty,  sickness,  and 
distress  ;  or  to  raise  their  intellectual,  moral,  and  social  condition  ;  or  to 
make  improvement  in  their  art ;  or  for  other  proper  purposes.  Or  the 
association  might  be  designed  for  purposes  of  oppression  and  injustice. 
But  in  order  to  charge  all  those,  who  become  members  of  an  association, 
with  the  guilt  of  a  criminal  conspiracy,  it  must  be  averred  and  proved 
that  the  actual,  if  not  the  avowed  object  of  the  association,  was  crim- 
inal. An  association  may  be  formed,  the  declared  objects  of  which  are 
innocent  and  laudable,  and  yet  they  may  have  secret  articles,  or  an 
agreement  communicated  only  to  the  members,  by  which  they  are 
banded  together  for  purposes  injurious  to  the  peace  of  society  or  the 
rights  of  its  members.  Such  would  undoubtedly  be  a  criminal  conspir- 
acy, on  proof  of  the  fact,  however  meritorious  and  praiseworthy  the 
declared  objects  might  be.  The  law  is  not  to  be  hoodwinked  by  color- 
able pretences.  It  looks  at  truth  and  reality,  through  whatever  disguise 
it  may  assume.  But  to  make  such  an  association,  ostensibly  innocent, 
the  subject  of  prosecution  as  a  criminal  conspiracy,  the  secret  agree- 
ment which  makes  it  so  is  to  be  averred  and  proved  as  the  gist  of  the 
offence.  But  when  an  association  is  formed  for  purposes  actually  inno- 
cent, and  afterwards  its  powers  are  abused,  by  those  who  have  the  con- 
trol and  management  of  it,  to  purposes  of  oppression  and  injustice,  it 
will  be  criminal  in  those  who  thus  misuse  it,  or  give  consent  thereto, 
but  not  in  the  other  members  of  the  association.     In  this  case,  no  such 


SECT.  III.]  COMMONWEALTH   V.    HUNT. 


823 


secret  agreement,   varying  tlie  objects  of  the  association   from  thoso 
avowed,  is  set  forth  in  this  count  of  the  indictment 

Nor  can  we  perceive  that  the  objects  of  this  association,  whatever 
they  may  have  been,  were  to  be  attained  bv  criminal  means.  The 
means  which  they  proposed  to  employ,  as  averred  in  this  cotint,  an.l 
which,  as  we  are  now  to  presume,  were  estabUsiicd  by  the  proof,  were, 
that  they  would  not  work  for  a  person,  who,  after  due  notice,  should 
employ  a  journeyman  not  a  member  of  their  socictv.  Supposing  the 
object  of  the  association  to  be  laudable  and  lawful,  or  nt  least  not 
unlawful,  are  these  means  criminal?  The  case  supposes  tliat  these 
persons  are  not  bound  by  contract,  but  free  to  work  for  whom  thoy 
please,  or  not  to  work,  if  they  so  prefer.  In  this  state  of  things,  we 
cannot  perceive,  that  it  is  criminal  for  men  to  agree  together  to  exer- 
cise their  own  acknowledged  rights,  in  such  a  manner  as  best  to  sub- 
serve their  own  interests.  One  way  to  test  this  is,  to  consider  the 
effect  of  such  an  agreement,  where  the  object  of  the  association  is 
acknowledged  on  all  hands  to  be  a  laudable  one.  Suppose  a  class  of 
workmen,  impressed  with  the  manifold  evils  of  intemperance,  should 
agree  with  each  other  not  to  work  in  a  shop  in  which  ardent  spirit  w.ns 
furnished,  or  not  to  work  in  a  shop  with  any  one  wlio  used  it,  or  not  to 
work  for  an  employer,  who  should,  after  notice,  employ  a  journeyman 
who  habitually  used  it.  The  consequences  migiit  be  the  same,  A 
workman,  who  should  still  persist  in  the  use  of  ardent  spirit,  would  find 
it  more  difficult  to  get  employment ;  a  master  employing  such  an  one 
might,  at  times,  experience  inconvenience  in  his  work,  in  losing  the 
services  of  a  skilful  but  intemperate  workman.  Still,  it  seems  to  us, 
that  as  the  object  would  be  lawful,  and  the  means  not  unlawful,  such 
an  agreement  could  not  be  pronounced  a  criminal  conspiracy. 

From  this  count  in  the  indictment,  we  do  not  understand  that  the 
agreement  was,  that  the  defendants  would  refuse  to  work  for  an  cm- 
plo3-er,  to  whom  the}'  were  bound  by  contract  for  a  certain  time,  in 
violation  of  that  contract ;  nor  that  the}'  would  insist  that  an  employer 
should  discharge  a  workman  engaged  by  contract  for  a  certain  time,  in 
violation  of  such  contract.  It  is  perfectly  consistent  with  everything 
stated  in  this  count,  that  the  effect  of  the  agreement  was,  that  when 
they  were  free  to  act,  they  would  not  engage  with  an  employer  or  con- 
tinue in  his  employment,  if  such  employer  when  free  to  act  should 
engage  with  a  workman,  or  continue  a  workman  in  his  employment  not 
a  member  of  the  association.  If  a  large  number  of  men  engageil  for  a 
certain  time  should  coml)ine  together  to  violate  their  contract  and  quit 
their  employment  together  it  would  present  a  very  different  question. 
Suppose  a  farmer  employing  a  large  number  of  men,  engaged  for  the 
year  at  fan-  monthly  wages,  and  suppose  that  just  at  the  moment  that  bis 
crops  were  ready  to  harvest,  they  should  all  comlnne  to  quit  his  scmce 
unless  he  would  advance  their  wages  at  a  time  when  other  lalKirers 
could  not  be  obtained.  It  would  surely  be  a  conspiracy  to  do  an 
unlawful  act,  though  of  such  a  character  that  if  done  by  an  individua/ 


824  COMMONWEALTH    V.    HUNT.  [CHAP.  XVIII, 

it  would  lay  the  foundation  of  a  civil  action  onlj-  and  not  of  a  criminal 
prosecution.  It  would  be  a  case  very  ditferent  from  that  stated  in  this 
count. 

The  second  count,  omitting  the  recital  of  unlawful  intent  and  evil 
disposition,  and  omitting  the  direct  averment  of  an  unlawful  club  or 
society,  alleges  that  the  defendants  with  others  unknown  did  assemble, 
conspire,  confederate,  and  agree  together,  not  to  work  for  any  master 
or  person  who  should  employ  any  workman  not  being  a  member  of  a 
certain  club,  society,  or  combination,  called  the  Boston  Journeymen 
bootmakers'  Society,  or  who  should  break  any  of  their  bj'-laws,  unless 
such  workmen  should  pay  to  said  club,  such  sum  as  should  be  agreed 
upon  as  a  penalty  for  the  breach  of  such  unlawful  rules,  etc. ;  and  that 
by  means  of  said  conspiracy  they  did  compel  one  Isaac  B.  Wait,  a  mas- 
ter cordwainer,  to  turn  out  of  his  employ  one  Jeremiah  Home,  a  jour- 
neyman boot-maker,  etc.  in  evil  example,  &c.  So  far  as  tlie  averment 
of  a  conspiracy  is  concerned  all  the  remarks  made  in  reference  to  the 
first  count  are  equally  applicable  to  this.  It  is  simply  an  averment 
of  an  agreement  amongst  themselves  not  to  work  for  a  person  who 
should  employ  an}-  person  not  a  member  of  a  certain  association.  It 
sets  forth  no  illegal  or  criminal  purpose  to  be  accomplished,  nor  any 
illegal  or  criminal  means  to  be  adopted  for  the  accomplishment  of  any 
purpose.  It  was  an  agreement  as  to  the  manner  in  which  they  would 
exercise  an  acknowledged  right  to  contract  with  others  for  their  labor. 
It  does  not  aver  a  conspiracy  or  even  an  intention  to  raise  their  wages  ; 
and  it  appears  by  the  bill  of  exceptions  that  the  case  was  not  put  upon 
the  footing  of  a  conspiracy  to  raise  their  wages.  Such  an  agreement 
as  set  forth  in  this  count  would  be  perfectly-  justifiable  under  the  recent 
English  statute  by  which  this  subject  is  regulated.  St.  6  Geo.  IV. 
c.  129.     See  Roscoe  Crim.  Ev.  (2d  Amer.  ed.)  368,  369. 

As  to  the  latter  part  of  this  count  which  avers  that  by  means  of  said 
conspiracy  the  defendants  did  compel  one  Wait  to  turn  out  of  his 
employ  one  Jeremiah  Home,  we  remark,  in  the  first  place,  that  as  the 
acts  done  in  pursuance  of  a  conspirac}-,  as  we  have  before  seen,  are 
stated  by  way  of  aggravation,  and  not  as  a  substantive  charge ;  if  no 
criminal  or  unlawful  conspiracy  is  stated,  it  cannot  be  aided  and  made 
good  by  mere  matter  of  aggravation.  If  the  principal  charge  falls  the 
aggravation  falls  with  it.     State  v.  Rickey,  4  Halst.  293. 

But  further,  if  this  is  to  be  considered  as  a  substantive  charge  it 
would  depend  altogether  upon  the  force  of  the  word  "  compel,"  which 
may  be  used  in  the  sense  of  coercion,  or  duress,  by  force  or  fraud.  It 
would  therefore  depend  upon  the  context  and  the  connection  with  other 
words,  to  determine  the  sense  in  which  it  was  used  in  the  indictment. 
If,  for  instance,  the  indictment  had  averred  a  conspiracy  by  the  defend- 
ants to  compel  Wait  to  turn  Home  out  of  his  employment,  and  to 
accomplish  that  object  by  the  use  of  force  or  fraud,  it  would  have  been 
a  very  different  case  ;  especially  if  it  might  be  fairly  construed,  as  per- 
haps in  that  case  it  might  have  been,  that  Wait  was  under  obligation 


SECT.  III.]  COMMONWEALTH   r.    HUNT. 


825 


b}'  contract  for  an  unexpired  term  of  time  to  cini)lov  :in,l  pay  II„rnc 
As  before  remarked,  it  would  have  been  a  conspiracy  to  do  an  unlaw- 
ful, though  not  a  criminal  act,  to  induce  Wait  to  violat<,-  hia  cnyaye- 
ment  to  the  actual  injury  of  Home.  To  mark  the  difTorencc  iKiwron 
the  case  of  a  journeyman  or  a  servant  and  mast,  r  mutually  l>ound  by 
contract,  and  the  same  parties  when  free  to  engage  anew,  I  should  have 
before  cited  the  case  of  the  lioston  Glass  Co.  r.  Binncy,  4  Pick.  425. 
In  that  case  it  was  held  actionable  to  entice  another  jjcrson's  hired  (rt- 
vMiit  to  quit  his  employment  during  the  time  for  which  ho  wa.H  en<;.'ij;fd  ; 
1/iiL  not  actionable  to  treat  with  such  hired  servant,  whilst  acUiallv  hirt  .| 
and  employed  by  another,  to  leave  his  service  and  engage  in  the  ruiplov  - 
nient  of  the  person  making  the  proposal,  when  the  term  for  which  heia 
engaged  shall  expire.  It  acknowledges  the  established  |)riiieiple  that 
every  free  man,  whether  skilled  laborer,  mechanic,  farmer,  or  domestic 
servant,  may  work  or  not  work,  or  work  or  refuse  to  work  with  anv 
company  or  individual,  at  his  own  option,  cxcei)t  so  far  as  he  is  bound 
by  contract.  But  whatever  might  be  the  force  of  the  word  "comi)cl." 
unexplained  by  its  connection,  it  is  disarmed  and  rendered  harnjless  bv 
the  precise  statement  of  the  means  by  which  such  compulbiou  Mas  to 
be  effected.  It  was  the  agreement  not  to  work  for  him  by  which  they 
compelled  Wait  to  decline  employing  Ilornc  longer.  On  both  of  these 
grounds  we  are  of  opinion  that  the  statement  made  in  this  second  count 
that  the  unlawful  agreement  was  carried  into  execution  makes  no 
essential  difference  between  this  and  the  first  count. 

The  third  count,  reciting  a  wicked  and  unlawful  intent  to  impoverish 
one  Jeremiah  Home  and  hinder  him  from  following  his  trade  as  a  lx)ot- 
maker,  charges  the  defendants,  with  others  unknown,  with  an  unlawful 
conspiracy,  by  wrongful  and  indirect  means,  to  impoverish  said  Hornc, 
and  to  deprive  and  hinder  him  from  his  paid  art  and  trade  and  getting 
his  support  thereby,  and  that  in  pursuance  of  said  unlawful  combina- 
tion, they  did  unlawfully  and  indirectly  hinder  and  prevent,  <SiC.  and 
greatly  impoverish  him. 

If  the  fact  of  depriving  Jeremiah  Home  of  the  profits  of  his  business 
by  whatever  means  it  might  be  done  would  be  unlawful  and  criminal,  a 
combination  to  compass  that  object  would  be  an  unlawful  conspiracy, 
and  it  would  be  unnecessary  to  state  the  means.  Such  seems  to  have 
been  the  view  of  the  court  in  The  King  v.  Eccles,  3  Doug.  337,  though 
the  case  is  so  briefly  reported  that  the  reasons  on  which  it  rests  arc  not 
very  obvious.  The  case  seems  to  have  gone  on  the  ground  that  the 
means  were  matter  of  evidence  and  not  of  averment,  and  that  after 
verdict  it  was  to  be  presumed  that  the  means  contemplated  and  used 
were  such  as  to  render  the  combination  unlawful  and  constittite  a 
conspiracy. 

Suppose  a  baker  in  a  small  village  had  the  exclusive  custom  of  his 
neighborhood,  and  was  making  large  profits  by  the  sale  of  his  bread. 
Supposing  a  number  of  those  neighbors,  believing  the  price  of  his  bread 
too  high,  should  propose  to  him  to  reduce  his  prices,  or  if  he  did  not 


826  COMMONWEALTH    V.    HUNT.  [cHAP.  XVIII. 

that  the}'  would  introduce  another  baker,  and  on  his  refusal  such  other 
baker  should  under  their  encouragement  set  up  a  rival  establishment, 
and  sell  his  bread  at  lower  prices,  the  effect  would  be  to  diminish  the 
profit  of  the  former  baker  and  to  the  same  extent  to  impoverish  him. 
And  it  might  be  said  and  proved  that  the  purpose  of  the  associates  was 
to  diminish  his  profits  and  thus  impoverish  him,  though  the  ultimate 
and  laudable  obj(!ct  of  the  combination  was  to  reduce  the  cost  of  bread 
to  themselves  and  their  neighbors.  The  same  thing  may  be  said  of  all 
competition  in  ever}'  branch  of  trade  and  industr}',  and  yet  it  is  through 
that  competition  that  the  best  interests  of  trade  and  industry  are  pro- 
moted. It  is  scarcely  necessary  to  allude  to  the  familiar  instances  of 
opposition  lines  of  conveyance,  rival  hotels,  and  the  tlioiisand  other 
instances  where  each  strives  to  gain  custom  to  himself  by  ingenious 
improvements,  by  increased  industr}',  and  b}'  all  the  means  b}'  which 
he  may  lessen  the  price  of  commodities,  and  thereby  diminish  the 
profits  of  others. 

We  think,  therefore,  that  associations  may  be  entered  into,  the 
object  of  which  is  to  adopt  measures  that  may  have  a  tendenc}'  to 
impoverish  another,  that  is,  to  diminish  his  gains  and  profits,  and  yet 
so  far  from  being  criminal  or  unlawful,  the  object  may  be  highly  meri- 
torious and  public  spirited.  The  legality  of  such  an  association  will 
therefore  depend  upon  the  means  to  be  used  for  its  accomplishment. 
If  it  is  to  be  carried  into  effect  by  fair  or  honorable  and  lawful  means, 
it  is,  to  say  the  least,  innocent ;  if  by  falsehood  or  force,  it  may  be 
stamped  with  the  character  of  conspirac}'.  It  follows  as  a  necessary 
consequence  that  if  criminal  and  indictable  it  is  so  b}-  reason  of  the 
criminal  means  intended  to  be  employed  for  its  accomplishment ;  and 
as  a  further  legal  consequence,  that  as  the  criminality  will  depend  on 
the  means  those  means  must  be  stated  in  the  indictment.  If  the  same 
rule  were  to  prevail  in  criminal  which  holds  in  civil  proceedings,  that 
a  case  defectivel}'  stated  may  be  aided  b}-  a  verdict,  then  a  court  might 
presume  after  verdict  that  the  indictment  was  supported  by  proof  of 
criminal  or  unlawful  means  to  effect  the  object.  But  it  is  an  estab- 
lished rule  in  criminal  cases  that  the  indictment  must  state  a  complete 
indictable  offence,  and  cannot  be  aided  b}'  the  proof  offered  at  the  trial. 

The  fourth  count  avers  a  conspiracy  to  impoverish  Jeremiah  Home 
without  stating  any  means  ;  and  the  fifth  alleges  a  conspiracy  to  impov- 
erish emplo^'crs  b}^  preventing  and  liindering  them  from  employing 
persons  not  members  of  the  Bootmakers'  Societ}',  and  these  require  no 
remarks  which  have  not  been  alread}'  made  in  reference  to  the  other 
counts. 

One  case  was  cited  which  was  supposed  to  be  much  in  point,  and 
which  is  certainly  deserving  of  great  respect.  The  People  v.  Fisher, 
14  Wend.  1.  But  it  is  obvious  that  this  decision  was  founded  on  the 
construction  of  the  revised  statutes  of  New  York  b}'  which  this  matter 
of  conspiracy  is  now  regulated.  It  was  a  conspiracy  b}-  journeymen  to 
raise  their  wages,  and  it  was  decided  to  be  a  violation  of  the  statutes 


SECT.  HI.]  COMMONWEALTH    V.    HUNT. 


827 


making  it  criminal  to  commit  any  act  injurious  to  tra.le  or  conHnercc. 
It  has,  therefore,  an  indirect  application  only  to  the  present  case. 

A  caution  on  this  subject  suggested  by  tlie  conmii.s.sioner.s  for  rcvis- 
ing  the  statutes  of  New  York  is  entitled  to  great  onsideralion.  They 
are  alluding  to  the  question  whether  the  law  of  conspiracy  slioiild  be 
so  extended  as  to  embrace  every  case  where  two  or  more  unite  in  some 
fraudulent  measure  to  injure  an  individual  l)y  means  not  in  tliemsclvea 
criminal.  ''The  great  difliculty,"  say  they,  "in  enlarging  the  defim- 
tion  of  this  offence  consists  in  the  inevitable  result  of  depriving  the 
courts  of  equity  of  the  most  effectual  means  of  (h'tccting  fraud  bv  com- 
pelling a  discovery  on  oath.  It  is  a  sound  principle  of  our  instiUitioriH 
that  no  man  shall  be  compelled  to  accuse  himself  of  any  crime,  which 
ought  not  to  be  violated  in  any  case.  Yet  such  must  be  the  result  or 
the  ordinary  jurisdiction  of  courts  of  equity  must  be  destroyed  bj' 
declaring  any  private  fraud  wIkmi  committed  by  two,  or  any  concert  to 
commit  it  criminal."  9  Cow.  G25.  In  New  Jersey  in  a  case  which  wa.s 
much  considered,  it  was  held  that  an  indictment  will  not  lie  for  a  con- 
spiracy to  commit  a  civil  injury.  State  >•.  Rickey,  4  Ilalst.  2'J3.  And 
such  seemed  to  be  the  opinion  of  Lord  Ellenborougli  in  The  King  /•. 
Turner,  13  East,  231,  in  which  he  considered  that  the  c:use  of  The 
King  V.  Eccles,  3  Doug.  337,  though  in  form  an  indictment  for  a  conspir- 
acy to  prevent  an  individual  from  carrying  on  his  trade,  yet  in  sul»- 
stance  was  an  indictment  for  a  conspiracy  in  restraint  of  trade  affecting 
the  public. 

It  appears  by  the  bill  of  exceptions  that  it  was  contended  on  the  part 
of  the  defendants  that  this  indictmont  did  not  set  forth  any  agreement 
to  do  a  criminal  act,  or  to  do  any  lawful  act  by  criminal  means,  and  that 
the  agreement  therein  set  forth  did  not  constitute  a  conspiracy  indict- 
able by  the  law  of  this  state,  and  tiiat  the  court  was  retjuested  so  to 
instruct  the  jury.  This  the  court  declined  doing,  but  instructed  the 
jury  that  tlie  indictment  did  describe  a  confederacy  among  the  defend- 
ants to  do  an  unlaw^ful  act,  and  to  effect  the  same  by  unlawful  means  ; 
that  the  society,  organized  and  associated  for  the  purposes  described 
in  the  indictment,  was  an  unlawful  conspiracy  against  the  laws  of  this 
state,  and  that  if  the  jury  believed  from  the  evidence  that  the  defend- 
ants or  any  of  them  had  engaged  in  such  confederacy  they  were  bound 
to  find  such  of  them  guilty. 

In  this  opinion  of  the  learned  judge  this  court  for  the  reasons  slated 
cannot  concur.  Whatever  illegal  purpose  can  be  found  in  tlie  constitu- 
tion of  the  Bootmakers'  Society,  it  not  being  clearly  set  forth  in  the 
indictment,  cannot  be  relied  upon  to  support  this  conviction.  So  if  any 
facts  were  disclosed  at  the  trial,  which  if  properly  averred  would  have 
given  a  different  character  to  the  indictment,  they  do  not  apjKjar  in  the 
bill  of  exceptions,  nor  could  they  after  verdict  aid  the  indictment.  IJut 
looking  solely  at  the  indictmen*,  disregarding  the  qualifying  epilhcl-s, 
recitals,  and  immaterial  allegations,  and  confining  ourselves  to  facts  so 
averred  as  to  be  capable  of  being  traversed  and  put  in  issue,  wc  cannol 


828  STATE   V.   DONALDSON.  [CHAP.  XVIIL 

perceive  that  it  charges  a  criminal  conspiracy  punishable  by  law.     The 
exceptions  must,  therefore,  be  sustained,  and  the  judgment  arrested. 

Several  other  exceptions  were  taken  and  have  been  argued ;  but  this 
decision  on  the  main  question  has  rendered  it  unnecessary  to  consider 
them. 


STATE  V.   DONALDSON. 
Supreme  Court  of  New  Jersey.     1867. 

[Reported  32  A".  J.  Law,  151.] 

This  was  a  motion  to  quash  an  indictment  charging  a  conspiracy, 
which  had  been  brought  into  this  court  by  certiorari. 

The  substantial  facts  constituting  the  alleged  crime  were  these,  viz., 
that  the  defendants,  and  divers  other  evil  disposed  persons,  etc.,  being 
journeymen  workmen  emploj^ed  by  Richmond  Ward,  John  C.  Little, 
and  others,  who  then  and  there  were  engaged  together  in  the  manu- 
facture of  patent  leather,  and  as  curriers,  maliciously,  to  control,  in- 
jure, terrify,  and  impoverish  tlieir  said  employers,  and  force  and  compel 
them  to  dismiss  from  their  said  employment  certain  persons,  to  wit, 
Charles  Beggan  and  William  Pendergrast,  then  and  there  retained  by 
their  said  employers  as  journeymen  and  workmen  for  them,  and  to 
injure  said  Charles  and  William,  and  without  having  any  lawful  cause 
of  objection  to  said  Charles  and  William,  unlawfully  did  conspire,  com- 
bine, confederate,  and  agree  together  to  quit,  leave,  and  turn  out  from 
their  said  employment,  until  and  unless  the  said  last-mentioned  jour- 
neymen and  workmen  should  be  dismissed  bj'  their  said  employers. 
The  indictment  then  further  charged,  that  in  pursuance  of  such  con- 
spiracy", they  gave  notice  of  their  agreement  to  their  said  emplo^'ers, 
and  required  them  to  discharge  the  said  Charles  and  William,  which 
being  refused,  they  quitted  their  said  employment,  and  remained  away 
until  their  demand  was  complied  with. 

The  motion  was  argued  before  the  Chief  Justice,  and  Justices 
Bedle  and  Dalkimple. 

For  the  motion,  T.  iV^.  Mc Carter. 

For  the  state,  C.  Parker. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J.  There  is,  perhaps,  no  crime,  an  exact  definition  of 
which  it  is  more  difficult  to  give  than  the  offence  of  conspiracy.  Tli.it 
a  combination  of  persons  to  effect  an  end,  itself  of  an  indictable  nature, 
will  constitute  this  crime,  is  clear ;  nor  is  there  any  more  doubt  that, 
though  the  purpose  the  confederacy  is  designed  to  accomplish  be  not 
criminal,  yet  if  the  means  adopted  be  of  an  indictable  character,  this 
offence  is  likewise  committed.  Thus  far  the  limits  are  clearl}'  defined, 
and  embrace,  without  exception,  all  cases  which  fall  within  them.    But 


S^CT.  III.]  STATE   V.    DONALDSON.  829 

When  we  proceed  one  step  beyond  the  lines  thus  marked  out,  the  cases 
which  have  been  adjudged  to  he  conspiracies  appear  to  stan.l  apart  1  v 
themselves,  and  are  devoid  of  that  ar.alogy  U>  each  other  which  ssouL 
render  them  susceptible  of  classification.  It  is  certain,  I.owcv.t  tl.ut 
there  are  a  number  of  cases,  in  which  neither  the  purpose  inton-hd  to 
be  accomplished  nor  the  means  designed  to  be  used  were  crin.inai. 
which  have  been  regarded  to  be  indictable  conspiracies  And  vet  it  is 
obvious  that,  in  3  nature  of  tilings,  it  cannot  be  evorv  ^lIuHio„ 
between  two  or  more  persons  to  do  an  unlawful  act,  or  an'  indiUereni 
act  by  unlawful  means,  which  will  constitute  an  oftenco  of  a  public 
nature;  for  if  this  were  so,  a  large  portion  of  the  transactions  wl.icl. 
in  the  ordinary  course  of  litigation  between  party  and  partv-  come, 
before  the  courts,  would  assume  a  criminal  aspect,  in  which  "the  stat* 
would  have  an  interest.  Indeed,  I  think  it  may  be  said  that  there  are 
comparatively,  but  few  cases  of  combinations  in  whivh  in.lictabilit ' 
does  not  attach,  either  to  the  end  in  view,  or  to  the  instrumcntalitii-1 
devised,  which  are  punishable  by  a  public  prosecution.  It  is  true,  iba'. 
running  to  an  extreme,  in  the  case  of  The  State  v.  Rickey,  4  Ilalst!^ 
293,  Mr.  Justice  Ford  insisted  that,  up  to  his  dav,  there  was  but  a 
single  case  extant  — that  of  Rex  v.  Cope  et  al,  1  Strange,  144,  which 
held  that  an  indictment  for  a  conspiracy  would  lie  for  a  combination  of 
two  or  more  to  commit  a  private  injury  which  was  not  a  public  wrong; 
and  he  further  insisted  that  the  case  referred  to  was  erroneouslv 
decided:  but  Mr.  Justice  Ryerson  did  not,  as  is  evident  from  the 
grounds  upon  which  he  rests  his  judgment,  concur  in  that  view ;  and 
the  course  of  reasoning  adopted  by  Mr.  Justice  Ford  is  now  verv  gene- 
rally admitted  to  be  fallacious.  In  tiic  case  of  The  State  v.  Norton, 
3  Zab.  44,  the  view  of  the  law  expressed  by  Mr.  Justice  Ford  is  di.snjv 
proved  of,  and  Chief  Justice  Green,  in  stating  his  conclusion,  after  an 
examination  of  the  subject,  remarks,  "The  great  weight  of  auiliority, 
the  adjudged  cases,  no  less  than  the  most  approved  eleinentar,-  writers, 
sustain  the  position,  that  a  conspiracy  to  defraud  individuals  or  a  cor- 
poration of  their  property,  may,  in  itself,  constitute  an  indictable 
offence,  though  the  act  done,  or  proposed  to  be  done  in  pursuance  of 
the  conspiracy,  be  not,  in  itself,  indictable." 

The  rule  of  law  thus  enunciated  appears  to  me  to  be  the  correct  one. 
There  are  a  number  of  cases  which  cannot  be  sustained  upon  any  other 
doctrine.  To  this  class  belongs  the  decision  that  it  was  a  conspiracy 
to  induce  a  3'oung  female,  by  false  representations,  to  leave  the  protec- 
tion of  the  house  of  her  parent,  in  order  to  facilitate  her  prostitution. 
Rex  V.  Lord  Grey,  3  Hargrave's  State  Trials,  519;  Rex  v.  Sir 
Francis  Deleval  and  others,  3  Burr.  1434.  So  a  conspiracy  to  im- 
poverish a  tailor,  and  prevent  him,  by  indirect  means,  from  carrying  on 
his  trade,  The  King  v.  Eccles,  3  Dougl.  337.  So  a  conspiracy  to 
many  paupers,  with  a  view  to  charge  one  parish  and  exonerate  another. 
Rex  V.  Tarrent,  4  Burr.  2106  ;  or  to  charge  a  man  with  being  the 
father  of  a  bastard,  Rex  v.  Armstronj;;,  1  Vent.  ^0}  ;  Hex  r.  Kimborty, 


830  STATE  V.   DONALDSON.  [cHAP.  XVIII. 

1  Lev.  62  ;  Rex  v.  Timberly,  Sid.  68  ;  or  a  combination  to  impoverish 
a  class  of  persons,  Rex.  v.  Sterling,  1  Lev.  125 ;  s.  c.  Sid.  174. 
These  are  all  cases,  it  will  be  noticed,  in  which  the  act  which  formed 
the  foundation  of  the  indictment  would  not,  in  law,  have  constituted  a 
crime,  if  such  act  had  been  done  by  an  individual,  the  combination 
being  alone  the  quality  of  the  transactions  which  made  them  respec- 
tively indictable. 

I  conclude,  then,  that  there  is  no  uncertainty  in  this  legal  topic  to 
this  extent,  in  addition  to  the  principles  before  adverted  to,  that  cases 
may  occur  in  which  the  purpose  designed  to  be  accomplished  becomes 
punitive,  as  a  public  offence,  solel}'  from  the  fact  of  the  existence  of  a 
confederacy  to  effect  such  purpose.  It  is  certain!}'  not  to  be  denied, 
however,  that  great  practical  difficulty  is  experienced  whenever  any 
attempt  is  made  to  lay  down  any  general  rules  by  which  to  discriminate 
that  class  of  combinations  which  becomes  thus  punishable,  from  those 
which  are  to  be  regarded  in  their  results  as  mere  civil  injuries,  remedi- 
able by  private  suit.  It  may  be  safely  said,  nevertheless,  that  a  com- 
bination will  be  an  indictable  conspiracy,  whenever  the  end  proposed, 
or  the  means  to  be  emj)loyed  are  of  an  highl}'  criminal  character ;  or 
where  they  are  such  as  indicate  great  malice  in  the  confederates ;  or 
where  deceit  is  to  be  used,  the  object  in  view  being  unlawful ;  or  where 
the  confederacy,  having  no  lawful  aim,  tends  simply  to  the  oppression 
of  individuals.  A  careful  analysis  of  the  cases  which  have  been  hereto- 
fore adjudged,  will  reveal  the  presence  of  one  or  more  of  the  quahties 
here  enumerated ;  to  this  extent,  therefore,  they  ma}'  be  relied  on  as 
safe  criteria  whereb}'  to  test  new  emergencies  as  they  may  be  presented 
for  adjudication. 

In  view,  then,  of  these  general  deductions,  and  guided  b}'  the  deci- 
sions above  cited,  let  us  turn  our  attention  to  the  particular  indictment 
now  before  us. 

The  substantial  offence  charged  is,  that  the  defendants  combined  to 
compel  their  employer  to  discharge  certain  of  their  fellow-workmen,  the 
means  adopted  to  enforce  this  concession  being  an  announced  determi- 
nation to  quit  their  employment  in  a  body  and  by  a  simultaneous  act. 
On  the  argument  before  this  court,  counsel  in  behalf  of  the  state 
endeavored  to  sustain  the  indictability  of  this  charge,  on  the  plea  that 
the  thing  thus  agreed  to  be  done  was  an  injury  to  trade,  and  conse- 
quentl}'  came  within  the  express  language  of  the  statute  on  the  subject 
of  conspiracy.  Nix.  Dig.  187,  §  61.  But  I  cannot  concur  in  this 
view.  An  act,  to  fall  within  this  provision,  must  be  one  which,  with 
directness,  inflicts  an  injury  on  trade,  as,  for  example,  a  combination 
to  depress  any  branch  of  trade  by  false  rumors.  But,  in  the  case 
before  us,  the  act  charged,  if  it  could  be  said  to  injure  trade  at  all,  did 
so  not  proximately,  but  remotely.  It  is  true  that,  at  a  far  remove,  an 
injury  to  an  individual  manufacturer  may  affect  trade  injuriously ;  but, 
in  the  same  sense,  so  it  is  true,  will  an  injury  inflicted  on  a  consumer 
of  manufactured  articles.     But  it  is  not  this  undesigned  and  incidental 


SECT.  III.]  STATE   V.    DONALDSON. 


831 


damage  which  is  embraced  within  the  statutory  denunciation.  On  this 
account,  I  think  the  indictment  does  not  present  an  a(l:iir  which  can  l,e 
comprehended  by  the  clause  of  the  act  which,  in  this  rcspei-t,  was  n-hvd 
on.  But  as  it  has  aheady  been  decided  by  liiis  court  that  the  »Lulule 
in  question  has  not  sui)erseded  tlie  common  hiw,  with  n-gard  to  the 
crime  of  conspiracy,  The  State  u.  Norton,  3  Zab.  4U,  the  fjljcstion  Mill 
remains  to  be  resolved,  whether  the  facts  charged  on  this  record  do  n<»t 
constitute  such  crime  upon  general  principles. 

It  appears  to  me  that  it  is  not  to  be  denied,  that  the  alleged  aim  of 
this  combination  was  unlawful ;  the  ellort  was  to  dictate  U>  this  i-iu- 
ployer  whom  he  should  discharge  from  his  emi)loy.  This  wus  an 
unwarrantable  interference  with  the  conduct  of  his  business,  and  it 
seems  impossible  that  such  acts  should  not  be,  in  their  usual  cHfcH. 
highly  injurious.  How  far  is  this  mode  of  dictation  to  l>c  held  lawful? 
If  the  manufacturer  can  be  compelled  in  this  way  to  discharge  two  (^r 
more  hands,  he  can,  by  similar  means,  be  coerce(i  to  retain  such  work- 
men as  the  conspirators  may  choose  to  designate.  So  his  customers 
may  be  proscribed,  and  his  business  in  other  respects  controlled.  I 
cannot  regard  such  a  course  of  conduct  as  lawful.  It  is  no  answer  to 
the  above  considerations  to  say,  that  the  emj)loyer  is  not  compelled  to 
submit  to  the  demand  of  his  employees ;  that  the  penalty  of  refusal  is 
simply  that  they  will  leave  his  service.  There  is  this  coercion  :  the 
men  agree  to  leave  simultaneously,  in  large  luimbers  and  by  precon- 
certed action.  We  cannot  close  our  eyes  to  the  fact,  that  the  tlueat  of 
workmen  to  quit  the  manufacturer,  under  these  circinnstances,  is  equi- 
valent to  a  threat,  that  unless  he  yield  to  their  unjustiliable  demand, 
the}'  will  derange  his  business,  and  thus  cast  a  heav}'  loss  upon  iiim. 
The  workmen  who  make  this  threat  understand  it  in  this  sense,  and  so 
does  their  employer.  In  such  a  condition  of  affairs,  it  is  idle  to  siijj^est 
that  the  manufacturer  is  free  to  reject  the  terms  which  the  confederates 
offer.  In  the  natural  position  of  things,  each  man  acting  as  an  indi- 
vidual, there  would  be  no  coercion  :  if  a  single  employee  should  demand 
the  discharge  of  a  co-employee,  the  employer  would  retain  his  freedom, 
for  he  cculd  entertain  or  repel  the  requisition  without  embarrassment 
to  his  concerns ;  but  in  the  presence  of  a  coalition  of  his  employees,  it 
would  be  but  a  waste  of  time  to  pause  to  prove  that,  in  most  cases,  he 
must  submit,  under  pain  of  often  the  most  ruinous  losses,  to  the  condi- 
tions imposed  on  his  necessities.  It  is  difficult  to  believe  that  a  right 
exists  in  law,  which  we  can  scarcely  conceive  can  produce,  in  any  p"-- 
ture  of  affairs,  other  than  injurious  results.  It  is  simply  the  right  of 
workmen,  by  concert  of  action,  and  by  t.iklng  advantage  of  their  posi- 
tion, to  control  the  business  of  another.  I  am  unwilling  to  hold  that  a 
right  which  cannot  in  any  event  be  advantageous  to  the  employee,  and 
which  must  be  always  hurtful  to  the  employer,  exists  in  law.  In  my 
opinion,  this  indictment  sufficiently  shows  that  the  force  of  the  cuiv- 
federates  was  brought  to  bear  upon  their  employer  for  the  purpose  uf 
oppression  and  mischief,  and  that  this  amounts  to  a  conspiracy. 


832  STATE    V.    DONALDSON.  [CHAP.  XVIII. 

I  also  think  this  result  is  sustained  by  all  the  judicial  opinion  which 
has  heretofore  been  expressed  on  this  point.     In  substance,  the  indict- 
ment in  this  case  is  similar  to  that  in  Rex  c.  Ferguson  and  Edge,  2 
Stark.  489.     Nor  were  the  circumstances  unlike ;  for  in  the  reported 
case,  the  defendants  were  charged  at  common  law  with  combining  to 
quit  and  turn  out  from  their  employment,  in  order  to  prevent  their 
employer  from  taking  apprentices  ;  and  although  the  case,  after  trial 
and  conviction,  was  mooted  iu  the  King's  Bench  on  points  of  evidence, 
no  doubt  was  suggested  as  to  the  indictable  nature  of  the  offence,  and 
the  defendants  were  accordingly  fined  and  imprisoned.     So  iu  Rex  v. 
Rickerdyke,  1  M.  &.  Rob.  179,  the  same  doctrine  was  maintained.    The 
indictment  charged,  that  the  defendant,  with  others,  conspired  to  pre- 
vent certain  hands  from  working  in  the  colliery;   and  the  evidence 
showed  that  the  body  of  the  men  met  and  agreed  upon  a  letter  addressed 
to  their  employer,  to  the  effect  that  all  the   workmen  would  strike  in 
fourteen  days  unless  the  obnoxious  men  were  discharged  from  the  col- 
liery ;  and  Patterson,  Justice,  held  that  these  workmen  had  no  right  to 
meet  and  combine  for  the  purpose  of  dictating  to  the  master  whom  he 
should  employ,  and  that  this  compulsion  was  clearly  illegal.    These  two 
cases,  it  will  be  observed,  sustain  with  entire  aptness  the  opinion  above 
expressed,  and  I  have  not  found  any  of  an  opposite  tendency.     As  to 
the  case  of  The  Commonwealth  v.  Hunt,  4  Met.  Ill,  it  is  clearly  dis- 
tinguishable, and  I  concur  entirely,  as  well  with  the  principles  embodied 
in  the  opinion  which  was  read  in  the  case,  as  in  the  result  which  was 
attained.    The  foundation  of  the  indictment  in  that  case  was  the  forma- 
tion of  a  club  by  journeymen  boot-makers,  one  of  the  regulations  of 
which  was,  that  no  person  belonging  to  it  should  work  for  any  master 
workmen  who  should  employ  any  journeyman  or  other  workman  who 
should  not  be  a  member  of  such  club.     Such  a  combination  does  not 
appear  to  possess  any  feature  of  illegalit}-,  for  the  law  will  not  intend, 
without  proof,  that  it  was  formed  for  the  accomplishment  of  any  illegal 
end.     "  Such  an  association,"  says  Chief  Justice  Shaw,  in  his  opinion, 
*'  might  be  used  to  afford  each  other  assistance  in  times  of  povert}-, 
sickness,  and  distress;  or  to  raise  their  intellectual,  moral,  or  social 
condition  ;  or  to  make  improvements   in   their  art ;  or  for  other   pur- 
poses."   The  force  of  this  association  was  not  concentrated  with  a  view 
to   be  exerted   to  oppress    any    individual,  and   it   was  consequently 
entirely  unlike  the  case  of  men  who  take  advantage  of  their  position, 
to  use  the  power,  by  a  concert  of  action,  which   such  position  gives 
them,  to  compel   their  employer  to  a  certain  line  of  conduct.     The 
object  of  the  club  was  to  establish  a  general  rule  for  the  regulation  of 
its  members  ;  but  the  object  of  the  combination,  in  the  case  now  before 
this  court,  was  to  occasion  a  particular  result  which  was  mischievous, 
and  by  means  which  were  oppressive.     The  two  cases  are  not  parallel, 
and  must  be  governed  by  entirely  different  considerations. 

The  motion  to  quash  should  not  prevail.^ 

1  See  State  v.  Glidden,  55  Conn.  46.  -Ed. 


SECT.  III.]  CRUMP  V.   COMMONWKALTH.  §33 


CRUMP  V.   COMMONWEALTH. 
Supreme  Court  of  Appeals  of  Vikcima.     1888. 

[Reported  84  Va.  927.] 
Fauntleroy,  J.^  The  next  error  assigned  is  the  action  of  the  court 
in  giving  the  instruction  asked  for  by  the  Commonwealth,  as  foll.nvs  • 
-If  the  jury  believe,  from  the  evidence,  that  the  defcn.lanl  Vvmnu 
entered  into  an  agreement  ^-ith  one  or  more  cf  the  defV-ndants  «  h.-reb- 
they  undertook  to  coerce  the  firm  of  Daughman  Brothers  to  discln.ec 
from  their  employment,  against  tlie  will  of  the  said  firm,  certain  ncr- 
sons  then  in  their  employment,  and  to  take  into  their  cmplovraent  cor- 
tain  other  persons  that  the  said  Baughman  Brothers  did  not  wish  to 
take  into  their  employment,  then  they  are  instructed  that  said  a<'roe. 
ment  was  unlawful ;  and  if  they  believe  further,  from  the  evidence, 
that  in  pursuance  and  to  carry  out  said  agreement,  he,  the  defendant,' 
threatened  any  of  the  customers  of  the  said  Bauglnnan  Brothers,  thev 
(the  said  persons  making  said  agreement)  would  injure  the  business  of 
such  customers,  by  intimidating  their  customers  and  making  thoni  afraid 
to  continue  their  patronage  of  tlie  customers  of  the  said  Baughin:m 
Brothers,  then  they  must  find  the  defendant  guilty."  The  instniction 
plainly  and  correctly  expounds  the  law  against  unlawful  combination 
and  guilty  conspiracy  to  interfere  with,  molest,  break  up,  and  ruin  the 
legitimate,  licensed  business  of  peaceable,  useful,  industrious,  nrid 
honest  citizens,  and  to  accomplish  this  end  by  the  threat  and  intimida- 
tion of  doing  "  all  in  the  power"  of  the  conspirators  to  '•  break  np 
and  destroy  the  business  "  of  all  the  existing  or  future  customers  of 
Baughman  Brothers,  who  should  thereafter  buy  "  anything  from  the 
said  firm  of  Baughman  Brothers,  or  employ  them,  the  said  liaughman 
Brothers,  in  their  said  business  as  printers."  And  the  instruction,  so 
far  from  being  a  mere  declaration  of  abstract  law,  is  a  direct  and 
proper  application  of  the  law  to  the  case  put  in  the  indictment  and 
made  by  the  evidence.  It  is  next  to  impracticable  to  extend  this  opinion 
by  reciting  the  evidence  in  detail,  further  than  we  shall  do  when  we 
come  to  consider  the  error  assigned  upon  the  admissibilit}- and  sudi- 
ciencj'  of  the  evidence  in  the  record  to  justify  the  verdict. 

The  instructions  which  were  asked  for  by  the  defendant  and  refused 
by  the  court  were  properly*  refused,  as  they  did  not  correctly  expound 
the  law,  and  were  unwarranted  by  the  evidence.  And.  more  than  the 
defect  of  having  no  predication  in  the  evidence,  they  utterly  and  adroitly 
ignore  the  facts  proved  of  the  evil  intent  of  the  defendant  and  his  con- 
federates to  do  a  wanton,  causeless  injury  and  ruin,  to  com|)el  and 
coerce  Baughman  Brothers  to  give  up  the  control  and  conduct  of  their 


*  Part  001/  of  the  opinion  is  given. 
53 


834  "  CRUMP   V.   COMMONWEALTH.  [CHAP.  XVIU 

own  long-established,  useful,  and  independent  business  to  the  absolute 
dictation  and  control  of  a  combination  of  tlie  defendant  and  others 
styling  themselves  "  Richmond  Typographical  Union,  No.  90  ;  "  and  to 
do  this  by  the  obtrusion,  terrorism,  excommunication,  and  obloquy  of 
the  "boycott"  against  Baughman  Brothers  and  all  their  customers  in 
Richmond,  Lynchburg,  and  throughout  Virginia  and  North  Carolina, 
ad  ifijinitum,  till  the}-  force  the  conquest  and  submission  of  all  resist- 
ance to  their  demands  and  self-constituted  management,  —  a  reign  of 
terror,  which,  if  not  checked  and  punished  in  the  beginning  by  the  law, 
■will  speedil}'  and  inevitabl}'  run  into  violence,  anarchy,  and  mob  tyranny. 
We  come  now  to  the  main  question  involved  in  tliis  appeal,  whether 
the  evidence  set  forth  in  this  record  presents  a  conspiracj-  at  common 
law.  The  determination  of  this  question  is,  indeed,  the  object  sought, 
as  we  not  only  infer  from  the  paltry  fine  of  five  dollars  imposed  by 
the  verdict,  but  b}'  the  intimation  in  argument  b}'  the  able  and  accom- 
plished counsel  for  the  defendant. 

Is  "  boycotting,"  as  resorted  to  and  practised  by  the  conspirators  in 
this  case,  allowable  under  the  laws  of  Virginia? 

For  a  legal  definition  or  explanation  of  the  meaning  and  practical 
effect  of  the  cabalistic  word,  as  well  as  for  a  pertinent  exposition  of 
the  law  applicable  to  the  facts  of  this  case,  we  refer  to  the  admirable 
opinion  of  Judge  Wellford  of  the  Circuit  Court  of  the  city  of  Rich- 
mond, in  the  case  of  Baughman  Brothers  v.  Askew,  Va.  L.  J.,  April, 
No.  196,  and  also  to  the  decision  of  the  Supreme  Court  of  Connecticut 
in  the  case  of  State  v.  Glidden,  55  Conn.  76.  In  that  case  the  court 
says:  "We  may  gather  some  idea  of  its  [boycotting]  real  mean- 
ing, however,  by  a  reference  to  the  circumstances  in  which  the 
word  originated.  Those  circumstances  are  thus  narrated  bj'  Mr. 
Justin  McCarthy,  an  Irish  gentleman  of  learning  and  ability,  who 
■will  be  recognized  as  good  authority  :  '  Captain  Boycott  was  an  English- 
man, an  agent  of  Lord  Erne,  and  a  farmer  of  Lough  Mask,  in  the 
wild  and  beautiful  district  of  Connemara.  In  his  capacity  as  agent  he 
had  served  notice  upon  Lord  Erne's  tenants,  and  the  tenantry  sud- 
denly retaliated,  etc.  His  life  appeared  to  be  in  danger ;  he  had  to 
claim  police  protection.  ...  To  prevent  civil  war,  the  authorities  had 
to  send  a  force  of  soldiers  and  police  to  Lough  Mask,  and  Captain 
Boycott's  harvest  was  brought  in  and  his  potatoes  dug  by  the  armed 
Ulster  laborers,  guarded  always  by  the  little  army.'  "  The  court  pro- 
ceeded to  sa}' :  "  If  this  is  a  correct  picture,  the  thing  we  call  a  boycott 
originally  signified  violence,  if  not  murder.  .  .  .  But  even  here,  if  it 
means,  as  some  high  in  the  confidence  of  the  trades  union  assert,  abso- 
lute ruin  to  the  business  of  the  person  boycotted,  unless  he  yields, 
then  it  is  criminal."  The  essential  idea  of  boycotting,  whether  in  Ire- 
land or  the  United  States,  is  a  confederation,  generally'  secret,  of  many 
persons  whose  intent  is  to  injure  another  by  preventing  any  and  all  per- 
sons from  doing  business  with  him,  through  fear  of  incurring  the  dis- 
pleasure, persecution,  and  vengeance  of  the  conspirators. 


SECT.  III.]  CRUMP  V.   COMMONWEALTH. 


835 


In  the  case  of  State  i;.  Donaldson,  32  N.  J.  L.  151,  Chief  Justice 
Beasley,  in  delivering  the  opinion  of  the  court,  said  :  "It  HpiKHiu 
to  me  that  it  is  not  to  be  di-nied  that  the  alU-td  aim  of  Huh  com- 
bination was  unlawful;  the  elfort  was  U)  diclalc  to  thiH  empioM-r 
whom  he  should  discharge  from  his  employ.  This  was  an  unwar- 
rantable interference  with  the  conduct  of  his  business,  etc.  If  the 
manufacturer  can  be  compelled  in  this  way  to  discharge  two  or  n)ore 
hands,  he  can,  by  similar  means,  be  coerced  to  retain  sucii  workmen  hh 
the  conspirators  may  choose  to  designate.  So  his  customers  may  bo 
proscribed,  and  his  business,  in  other  respects,  controlled.  I  cannot 
regard  such  a  course  of  conduct  as  lawful." 

Chief  Justice  Shaw,  in  the  case  of  Commonwealth  v.  Hunt,  4  Met. 
Ill,  said:  "The  law  is  not  to  be  hoodwinked  by  colorable  pre- 
tences; it  looks  at  truth  and  reality  througli  whatever  disguises  it 
may  assume.  It  is  said  that  neither  threats  nor  intimidations  were 
used  ;  but  no  man  can  fail  to  see  that  there  may  be  threats,  and  there 
may  be  intimidations,  and  there  may  be  molesting,  and  there  may 
be  obstructing  (which  the  jury  are  quite  satisfied  have  taken  place, 
from  all  the  evidence  in  the  case),  without  there  being  any  express 
words  used  by  which  a  man  should  show  any  violent  threats  towanls 
another,  or  any  express  intimidation.  .  .  .  An  intention  to  create  alarm 
in  the  mind  of  a  manufacturer,  and  so  to  force  his  assent  to  an  altera- 
tion in  the  mode  of  carrying  on  his  business,  is  a  violation  of  hw  :  " 
Regina  v.  Rowlands,  5  Cox,  C.  C.  436,  462,  4C3  ;  Doolittle  i-.  Schan- 
bacher,  20  Cent.  L.  J.  229. 

Upon  the  trial  of  boycotters  in  New  York,  Judge  Barrett  said  : 
"  The  men  who  walk  up  and  down  in  front  of  a  man's  shop  may  be 
guilt}'  of  intimidation,  though  they  never  raise  a  finger  or  utter  a  word. 
Their  attitude  ma}',  nevertheless,  be  that  of  menace.  They  may  intim- 
idate by  their  numbers,  their  pleadings,  their  methods,  their  circulars, 
and  their  devices." 

It  matters  little  what  are  the  means  adopted  by  combinations  formed 
to  intimidate  employers,  or  to  coerce  other  journeymen,  if  the  design 
or  the  eflfect  of  them  is  to  interfere  with  the  rights  or  to  control  the 
free  action  of  others.  No  one  has  a  right  to  be  hedged  in  and  pro- 
tected from  competition  in  business ;  but  he  has  a  right  to  be  free  from 
wanton,  malicious,  and  insolent  interference,  disturbance,  or  annoy- 
ance. Every  man  has  the  right  to  work  for  whom  he  pleases,  and  for 
any  price  he  can  obtain  ;  and  he  has  the  right  to  deal  with  and  asso- 
ciate with  whom  he  chooses ;  or  to  let  severely  alone,  arbitrarily  and 
contemptuously,  if  he  will,  anybody  and  everybody  upon  earth.  But 
this  freedom  of  uncontrolled  and  unchallenged  self-will  docs  not  give 
or  imply  a  right,  either  by  himself  or  in  combination  with  others,  to 
disturb,  injure,  or  obstruct  another,  either  directly  or  indirectly,  in  his 
lawful  business  or  occupation,  or  in  his  peace  and  security  of  life. 
Every  attempt  by  force,  threat,  or  intimidation  to  deter  or  control  an 
employer  in  the  determination  of  whom  he  will  employ,  or  what  wage* 


836  CRUMP   V.   COMMONWEALTH.  [CHAP.  XVIIL 

he  will  paj',  is  an  act  of  wrong  and  oppression  ;  and  any  and  every 
combination  for  such  a  purpose  is  an  unlawful  conspiracy.  The  law 
will  protect  the  victim,  and  punish  the  movers  of  any  such  combina- 
tion. In  law,  the  offence  is  the  combination  for  the  purpose,  and  no 
overt  act  is  necessary  to  constitute  it :  State  v.  Wilson,  30  Conn.  507  ; 
State  V.  Donaldson,  supra  ;  Walker  u.  Cronin,  107  Mass.  564  ;  Carew 
V.  Rutherford,  106  Mass.  10,  15  ;  Master  Stevedores'  Association  v. 
Walsh,  2  Daly,  12;  Walsby  v.  Auley,  3  L.  T.,  n.  s.,666  ;  Regina  v. 
Duffield,  5  Cox,  C.  C.  432  ;  Parker  v.  Griswold,  17  Conn.  302;  Spring- 
head Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551 ,  Gilbert  v.  Mickle,  4 
Sand.  Ch.  357. 

A  wanton,  unprovoked  inteiference  by  a  combination  of  many  with 
the  business  of  another,  for  the  purpose  of  constraining  that  other  to 
discharge  faithful  and  long-tried  servants,  or  to  employ  whom  he  does 
not  wish  or  will  to  employ  (an  interference  intended  to  produce,  and 
likely  to  produce,  annoyance  and  loss  to  that  business)  will  be  restrained 
and  punished  by  the  criminal  law  as  oppressive  to  the  individual,  inju- 
rious to  the  prosperity  of  the  community,  and  subversive  of  the  peace 
and  good  order  of  society. 

The  recent  case  of  State  v.  Glidden,  already  referred  to,  decided  by 
the  Supreme  Court  of  Connecticut,  is  both  in  principle  and  features 
identical  with  the  case  under  review.  The  Carrington  Publishing  Com^ 
pan}'  had  in  their  employ  a  number  of  printers  known  as  "■  nou-uniou 
men,"  or  "rats."  The  Typographical  Union,  the  Knights  of  Labor, 
the  Trades'  Council,  the  Cigar-makers'  Union,  and  other  afliliated  secret 
organizations,  waited  upon  the  company  and  demanded  that  their  office 
be  made  a  "  union  olfice"  within  twenty-four  hours.  Upon  the  refusal 
of  the  company  to  make  their  office  a  "union  office,"  a  boycott  was 
instituted  against  them,  which,  though  not  openh'  published  as  in  this 
case,  was  fulh'  proved.  The  court  in  its  opinion  said  :  "  If  the  defend- 
ants have  the  right  which  they  claim,  then  all  business  enterprises  are 
alike  subject  to  their  dictation.  No  one  is  safe  in  engaging  in  busi- 
ness, for  no  one  knows  whether  his  business  affairs  are  to  be  directed 
by  intelligence  or  ignorance,  —  whether  law  and  justice  will  protect  the 
business,  or  brute  force,  regardless  of  law,  will  control  it ;  for  it  must 
be  remembered  that  the  exercise  of  the  power,  if  conceded,  will  by  no 
means  be  confined  to  the  matter  of  employing  help.  Upon  the  same 
principle,  and  for  the  same  reasons,  the  right  to  determine  what  busi- 
ness others  shall  engage  in,  when  and  where  it  shall  be  carried  on,  etc., 
will  be  demanded,  and  must  be  conceded.  The  principle,  if  it  once 
obtains  a  foothold,  is  aggressive,  and  is  not  easily  checked.  It  thrives 
on  what  it  feeds  on,  and  is  insatiate  in  its  demands.  More  requires 
more.  If  a  large  body  of  irresponsible  men  demand  and  receive  power 
outside  of  law,  over  and  above  law,  it  is  not  to  be  expected  that  they 
will  be  satisfied  with  a  moderate  and  reasonable  use  of  it.  All  history 
proves  that  abuses  and  excesses  are  inevitable.  The  exercise  of  irre- 
sponsible power  by  men,  like  the  taste  of  human  blood  by  tigers,  creates 


SECT.  III.]  CRUMP   V.    COMMONWKALTH. 


837 


an  unappeasable  appetite  for  more.  .  .  .  Confidence  is  the  cornor-«lonc 
of  all  business, -confidence  that  the  govern.m-Mt,  through  iu  courl^i 
will  be  able  to  protect  their  rights;  b„t  if  their  ri-hu  [of  huHiuoJi 
men]  are  such  only  as  a  secret,  irresi)on8ible  organization  in  willint;  to 
give,  where  is  that  confidence  which  is  essential  Uy  the  prospcritv  of  the 
country:'  .  .  .  The  end  would  be  anarchy,  p„re  an.l  8in.pl,..  an.l  if.e 
subversion,  not  only  of  all  business,  but  also  of  hiw  and  ih.-  govrrn- 
ment  itself.  They  [defendants]  had  a  right  to  n-cjuest  the  Carrington 
Publishing  Company  to  discharge  its  workmen  and  employ  thomMelve«, 
and  to  use  all  proper  argument  in  support  of  their  rerjuVst,  but  tliov 
had  no  right  to  say,  'You  shall  do  this,  or  we  will  ruin  voi.r  ».nHin.-«g> 
Much  less  had  they  a  right  to  ruin  its  business.  'I'he  "fact  timt  it  is 
designed  as  a  means  to  an  end,  and  that  end  in  itself  consi.lcrecl  is  a 
lawful  one,  does  not  divest  the  transaction  of  its  criminalitv." 

The  defendant  lays  great  stress  upou  the  case  of  Commonwealth 
V.  Hunt,  4  Met.  Ill,  as  authorrty  to  sustain  the  legality  of  lH)ycot- 
ting;  but  there  is  an  obvious  distinction  between  that  case  and  that 
of  this  defendant.  That  was  a  club  or  combination  of  jonrnevmcn 
boot-makers  simply  to  better  their  own  condition,  and  it  had  no  niiu 
or  means  of  aggression  upon  the  business  or  rights  of  others;  thev 
simply  had  regulations  for  themselves,  and  did  not  combine  or  operate 
for  a  result  mischievous,  meddlesome,  and  oppressive  towards  others. 
But,  even  in  that  case,  the  court,  after  supposing  the  case  of  a  com- 
bination for  the  ultimate  and  laudable  object  of  reducing,  bv  more 
competition,  the  price  of  bread  to  themselves  and  their  neighbors,  said  : 
*'  The  legality  of  such  an  association  will,  therefore,  depend  upon  the 
means  to  be  used  for  its  accomplishment.  If  it  is  to  l)e  carried  into 
effect  b}'  fair  and  honorable  means,  it  is,  to  say  the  least,  innocent ;  if 
b}'  falsehood  or  force,  it  ma}-  be  stamped  with  the  character  of  con- 
spirac}'."  Force  ma}^  be  operated  either  physically  or  mechanically  ;  or 
it  may  be  coercion  by  fear,  threat,  or  intimation  of  loss,  injury,  obloquy, 
or  suffering. 

The  evidence  in  this  case  shows  that  while  Bangliman  Brothers  wt>ro 
engaged  in  their  lawful  business  as  stationers  and  printers,  the  i)lainlill 
in  error  and  the  other  members  of  the  Richmond  Typographical  Union. 
No.  90,  conspired  to  compel  Baughman  Brothers  to  make  their  oflk-e  a 
"  union  office,"  and  to  compel  them  not  to  employ  any  printer  who  did 
not  belong  to  the  said  union  ;  that  upon  the  refusal  of  Baughman 
Brothers  to  make  their  office  (or  business)  a  "  union  office,"  the  pUin- 
tiff  in  error  and  others  composing  the  said  Richmond  Typographical 
Union,  No.  90,  conspired  and  determined  to  boycott  the  said  firm  of 
Baughman  Brothers,  as  they  had  threatened  to  do,  and  sent  cin-ulars  to  a 
great  pany  of  the  customers  of  the  said  firm  informing  them  that  tliey 
had,  "  with  the  aid  of  the  Knights  of  Labor  and  all  the  trades  organij-.a- 
tions  in  this  city  [Richmond],  boycotted  the  establishment  of  Mejisni. 
Baughman  Brothers,"  and  formally  notifying  the  said  customers  thaitho 
names  of  all  persons  who  should  persist  in  trading,  patronizing,  or  dealing 


838  CRUMP   V.   COMMONWEALTH.  [CHAP.  XVIIl. 

with  Baughman  Brothers,  after  being  notified  of  the  boycott,  would  be 
published  weekly  ia  the  Labor  Herald  as  a  "  black-list,"  who,  in 
their  turu,  would  be  boycotted  until  they  agreed  to  withdraw  their 
patronage  from  Baughman  Brothers ;  and,  accordingly,  the  employees 
of  Baughman  Brothers  were  mercilessly  hounded  by  publication 
after  publication,  for  months,  in  the  Labor  Herald  (which  was  the 
boasted  engine  of  the  boycotting  conspirators),  whereby  it  was  at- 
tempted to  excite  public  feeling  against  them,  and  prevent  them  from 
obtaining  even  board  and  shelter ;  and  the  names  of  the  customers  and 
patrons  of  the  said  firm  were  published  in  the  said  sheet  under  the  stand- 
ing head  of  "  black-list." 

The  length  of  this  opinion  will  preclude  the  mention  of  even  a  tithe 
of  these  incendiary  pulilications  week  after  week  for  months ;  but  not 
only  Baughman  Brothers  and  their  employees  and  their  customers,  but 
the  hotels,  boarding-houses,  public  schools,  railroads,  and  steamboats 
conducting  the  business  travel  and  transportation  of  the  city  were  listed 
and  published  under  the  obloquy  and  denunciation  of  the  "  black-list" 
One  or  two  specimens  will  suffice :  *'  Boycott  Baughman  Brothers  and 
all  who  patronize  them."  "  Watch  out  for  Baughman  Brothers'  '  rats,' 
and  find  out  where  thej"  board.  It  is  dangerous  for  honest  men  to 
board  in  the  same  house  with  these  creatures.  The}''  are  so  mean  that 
the  air  becomes  contaminated  in  which  they  breathe."  "Boycott 
Baughman  Brothers  every  day  in  the  week."  "Boycott  Baughman 
Brothers,  because  they  are  enemies  of  honest  labor."  "  Boycott 
Baughman  Brothers'  customers  wherever  you  find  them."  "  The  Lj'nch- 
burg  boys  will  begin  to  play  their  hand  on  Messrs.  Baughman 's 
boycotted  goods  in  a  short  time.  The  battle  will  not  be  fought  in 
Richmond  onl}',  but  in  all  Virginia  and  North  Carolina  will  be  raised 
the  cr^^,  'Away  with  the  goods  of  this  tyrannical  firm.'"  "Let  our 
friends  remember  it  is  the  patronage  of  the  Chesapeake  and  Ohio, 
Richmond,  Fredericksburg,  and  Potomac,  Richmond  and  Danville,  and 
Richmond  and  Alleghanj^  railroads  that  is  keeping  Baughman  Brothers 
up."  "  We  are  sorry  to  see  the  Exchange  Hotel  on  the  black-list. 
There  will  be  two  thousand  strangers  in  this  cit}'  in  October,  none  of 
whom  will  patronize  a  hotel  or  boarding-house  whose  name  appears  on 
that  list."  "  The  boycott  on  Baughman  Brothers  is  working  so  good 
that  a  man  cannot  buy  a  single  bristol-board  from  the  '  rat'  firm  with- 
out having  his  name  put  upon  the  black-list."  "  The  old  '  rat'  estab- 
lishment is  about  to  cave  in.  Let  it  fall  with  a  crash  that  will  be  a 
warning  to  all  enemies  of  labor  in  the  future." 

It  was  proved  that  the  conspirators  declared  their  set  purpose  and 
persistent  effort  to  "crush"  Baughman  Brothers;  that  the  minions  of 
the  boycott  committee  dogged  the  firm  in  all  their  transactions,  fol- 
lowed their  delivery  wagon,  secured  the  names  of  their  patrons,  and 
used  every  means  short  of  actual  phj'sical  force  to  compel  them  to 
cease  dealing  with  Baughman  Brothers,  thereb}-  causing  them  to  lose 
from  one  hundred  and  fifty  to  two  hundred  customers,  and  ten  thousand 


SECT.  III.]       MORRIS   RUN   COAL   CO.   v.    B.VUCL.VY    COAL   CO.  839 

dollars  of  net  profit.  The  acts  alleged  and  proved  in  thia  case  arc 
unlawful,  and  incompatible  with  the  prosperity,  peace,  and  civilization 
of  the  country;  and  if  they  can  be  peri)etraU'd  with  impunity  i)V  torn- 
binations  of  irresponsible  cabals  or  cli(iues,  tlicic  will  tx;  the  end  of 
government,  and  of  society  itself.  Freedom,  individual  and  associaU-d, 
is  the  boon  and  the  boasted  policy  and  ijcculiuni  of  our  country  ;  but  it 
is  liberty  regulated  by  law  ;  and  the  motto  of  the  law  is  /Sic  utere  tuo 
ut  alienutn  non  Icedas. 

The  plaintifT  in  error  was  properly  convicted ;  and  the  judgment  of 
the  hustings  court  complained  of  is  allirmed. 


MORRIS   RUN  COAL  COMPANY  v.  BARCLAY   COAL 
COMPANY. 

Supreme  Court  of  Pennsylvania.  187L 

[Reported  68  Pa.  173.] 

Agnew,  J.^  The  effects  produced  on  the  public  interests  lead  to  the 
consideration  of  another  feature  of  great  weight  in  determining  the 
illegality  of  the  contract,  to  wit :  the  combination  resorted  to  by  these 
five  companies.  Singly  each  might  have  suspended  deliveries  and  sales 
of  coal  to  suit  its  own  interests,  and  might  have  raised  the  price,  even 
though  this  might  have  been  detrimental  to  the  public  interest  There 
is  a  certain  freedom  which  must  be  allowed  to  every  one  in  the  manage- 
ment of  his  own  affairs.  When  competition  is  left  free,  individual 
error  or  foil}'  will  generally  find  a  correction  in  the  conduct  of  others. 
But  here  is  a  combination  of  all  the  companies  operating  in  the  Hloss- 
burg  and  Barclay'  mining  regions,  and  controlling  their  entire  produc- 
tions. They  have  combined  together  to  govern  the  supply  and  the 
price  of  coal  in  all  the  markets  from  the  Hudson  to  the  Mississippi 
rivers,  and  from  Pennsylvania  to  the  lakes.  This  combination  has  a 
power  in  its  confederated  form  which  no  individual  action  can  confer. 
The  public  interest  must  succumb  to  it,  for  it  has  left  no  competition 
free  to  correct  its  baleful  influence.  When  the  supply  of  coal  is  sus- 
pended, the  demand  for  it  becomes  importunate,  and  prices  must  rise. 
Or  if  the  supply  goes  forwards  the  i)rice  fixed  by  the  confederates  must 
accompany  it.  The  domestic  heartli,  the  furnaces  of  the  iron-master, 
and  the  fires  of  the  manufacturer,  all  feel  the  restraint,  while  many  de- 
pendent hands  are  paralyzed,  and  hun<:ry  mouths  are  stinted.  The 
influence  of  a  lack  of  supply  or  a  rise  in  the  price  of  an  article  of  such 
prime  necessity,  cannot  be  measured.  It  permeates  the  entire  m.i.«w  of 
community,  and  leaves  few  of  its  members  untouched  by  ila  withering 

1  Only  an  extract  from  the  opinion  is  given. 


840  MORRIS   RUN   COAL   CO.   V.   BARCLAY   COAL   CO.      [CHAP.  XVIII. 

bljo-ht.  Such  a  combination  is  more  than  a  contract,  it  h  an  offence. 
'•I  take  it,"  said  Gibson,  J.,  "a  combination  is  criminal  whenever  the 
act  to  be  done  has  a  necessary  tendency  to  prejudice  the  pubUc  or  to 
oppress  individuals,  by  unjustly  subjecting  them  to  the  power  of  the 
confederates,  and  giving  effect  to  the  purpose  of  the  latter,  whether  of 
extortion  or  of  mischief."  Commonwealth  v.  Carlisle,  Brightly's  Rep. 
40.  In  all  such  combinations  where  the  purpose  is  injurious  or  unlaw- 
ful, the  gist  of  the  offence  is  the  conspiracy.  Men  can  often  do  by  the 
combination  of  many,  what  severally  no  one  could  accomplish,  and 
even  what  when  done  by  one  would  be  innocent.  It  was  held,  in  The 
Commonwealth  v.  Eberle.,  3  S.  &  R.  9,  that  it  was  an  indictable  con- 
spiracy for  a  portion  of  a  German  liUtheran  congregation  to  combine 
and  agree  together  to  prevent  another  portion  of  the  congregation,  by 
force  of  arms,  from  using  the  English  language  in  the  worship  of  God 
among  the  congregation.  So  a  confederacy  to  assist  a  female  infant  to 
escape  from  her  father's  control  with  a  view  to  marry  her  against  his  will, 
is  indictable  as  a  conspiracy  at  common  law,  while  it  would  have  been  no 
criminal  offence  if  one  alone  had  induced  her  to  elope  with  and  marry 
him.  Mifflin  v.  Commonwealth,  5  W.  &  S.  461.  One  man  or  many  may 
hiss  an  actor ;  but  if  they  conspire  to  do  it  they  may  be  punished. 
Per  Gibson,  C.  J.,  Hood  v.  Palm,  8  Barr,  238  ;  2  Russel  on  Crimes,  556. 
And  an  action  for  a  conspiracy  to  defame  will  be  supported  though  the 
words  be  not  actionable,  if  spoken  by  one.  Hood  v.  Palm,  supra. 
"  Defamation  by  the  outcry  of  numbers,"  says  Gibson,  C.  J.,  "is  as 
resistless  as  defamation  by  the  written  act  of  an  individual."  And 
says  Coulter,  J.,  "  The  concentrated  energy  of  several  combined  wills, 
operating  simultaneously  and  by  concert  upon  one  individual,  is  dan- 
gerous even  to  the  cautious  and  circumspect,  but  when  brought  to  bear 
upon  the  unwary  and  unsuspecting,  it  is  fatal."  Twitchell  v.  Common- 
wealth, 9  Barr,  211.  There  is  a  potency  in  numbers  when  combined, 
which  the  law  cannot  overlook,  where  injury  is  the  consequence.  If 
the  conspiracy  be  to  commit  a  crime  or  an  unlawful  act,  it  is  easj'  to 
determine  its  indictable  character.  It  is  more  difficult  when  the  act  to 
be  done  or  purpose  to  be  accomplished  is  innocent  in  itself.  Then  the 
offence  takes  its  hue  from  the  motives,  the  means,  or  the  consequences. 
If  the  motives  of  the  confederates  be  to  oppress,  the  means  they  use 
unlawful,  or  the  consequences  to  others  injurious,  their  confederation 
will  become  a  conspirac}'.  Instances  are  given  in  The  Commonwealth 
V.  Carlisle,  Bright.  R.  40.  Among  those  mentioned  as  criminal  is  a 
combination  of  employers  to  depress  the  wages  of  journeymen  below 
what  they  would  be,  if  there  were  no  resort  to  artificial  means ;  and  a 
combination  of  the  bakers  of  a  town  to  hold  up  the  article  of  bread,  and 
by  means  of  the  scarcity  thus  produced  to  extort  an  exorbitant  price 
for  it.  The  latter  instance  is  precisely  parallel  with  the  present  case. 
It  is  the  effect  of  the  act  upon  the  public  which  gives  that  case  and  this 
its  evil  aspect  as  the  result  of  confederation ;  for  any  baker  might 
choose  to  hold  up  his  own  bread,  or  coal  operator  his  coal,  rather  thao 


SECT.  III.l       MORRIS  RUN  COAL   CO.   v.   BARCLAY  COAL  CO.  841 

to  sell  at  ruling  prices  ;  but  when  he  destroys  conii)etition  by  a  combi- 
nation with  others,  the  public  can  buy  of  no  one. 

In  Rex  V.  Dc  Berenger,  3  M.  &  S.  G7,  it  was  htl,l  to  be  a  ton 
spiracy  to  combine  to  raise  the  public  funds  on  a  pariicuhir  day  l;y  faLso 
rumors.  The  purpose  itself,  said  Lord  Kllonl^oroiigh,  is  mischievous 
—  it  strikes  at  the  price  of  a  valuable  commodity  in  the  market,  and 
if  it  gives  it  a  fictitious  price  by  means  of  false  rumors,  it  is  a  fraud 
levelled  against  the  public,  for  it  is  against  all  such  as  may  possiblv 
have  anything  to  do  with  the  funds  on  thtit  particular  dav.  Every 
"corner,"  in  the  language  of  the  day,  whether  it  be  to  affect  the 
price  of  articles  of  commerce,  such  as  breadstuffs,  or  the  price  of  vend- 
ible stocks,  when  accomplished  by  confederation  to  raise  or  depress 
the  price  and  operate  on  the  markets,  is  a  conspiracy.  Tlie  ruin  often 
spread  abroad  by  these  heartless  conspiracies  is  indescribable,  fre- 
quently tilling  the  land  with  starvation,  poverty,  and  woe.  Every 
association  is  criminal  whose  object  is  to  raise  or  depress  the  price 
of  labor  beyond  what  it  would  bring  if  it  were  left  without  artifi- 
cial aid  or  stimulus.  Rex  v.  Byerdike,  1  M.  &  S.  179.  In  the  case  of 
such  associations  the  illegality  consists  most  frequently  in  the  means 
employed  to  cany  out  the  object.  To  fix  a  standard  of  prices  among 
men  in  the  same  employment,  as  a  fee  bill,  is  not  in  itself  criminal,  but 
raa}'  become  so  when  the  parties  resort  to  coercion,  restraint,  or  penal- 
ties upon  the  employed  or  employers,  or  what  is  worse  to  force  of 
arms.  If  the  means  be  unlawful  the  combination  is  indictable.  Com- 
monwealth V.  Hunt,  4  Met.  111.  A  conspiracy  of  journeymen  of  any 
trade  or  handicraft  to  raise  the  wages  b}'  entering  into  combination  to 
coerce  journe3'men  and  master-workmen  employed  in  the  same  branch 
of  industry  to  conform  to  rules  adopted  by  such  combination  for  the 
purpose  of  regulating  the  price  of  labor,  and  carrying  such  rules  into 
effect  by  overt  acts,  is  indictable  as  a  misdemeanor.  3  AVhart.  C.  L., 
citing  The  People  v.  Fisher,  14  Wend.  9.  Without  multiplying  ex- 
amples, these  are  sufficient  to  illustrate  the  true  aspect  of  the  case 
before  us,  and  to  show  that  a  combination  such  as  these  companies 
entered  into  to  control  the  supply  and  price  of  the  Blossburg  and  Bar- 
clay regions  is  illegal,  and  the  contract  therefore  void.^ 

1  "Owners  of  goods  have  a  right  to  expect  at  an  auction  that  there  will  he  au  open 
competition  from  the  public  ;  and  if  a  knot  of  men  go  to  an  auction  upon  an  agree- 
ment among  themselves  of  the  kind  that  has  been  descril)ecl,  they  are  guilty  of  an 
indictable  offence,  and  may  be  tried  for  a  conspiracy."  Guruey,  li.,  in  Levi  i*.  Leri, 
SC.  &P.  239. --Ed. 


842  hall's  case.  [chap.  xix. 


CHAPTEE  XIX. 
NUISANCE. 

REX  V.    RONKETT. 
King's  Bench.     1607. 

[Manuscript}^ 

One  John  Ronkett  was  indicted  in  j^ais  for  that  he  had  made  candles 
within  the  vill  of  Bury,  whereby  he  had  caused  such  a  noisome  smell 
that  it  was  to  the  nuisance  of  the  inhabitants  of  said  vill,  and  dangerous 
b}'  reason  of  infection. 

The  indictment  was  held  insufficient  by  all  the  Court.  For  candles 
are  a  necessary  commodity,  without  which  people  cannot  well  live  ;  and 
though  it  be  noisome  in  smell,  still  since  it  is  needful  for  the  common- 
wealth it  shall  be  suffered.  But  in  boroughs  and  cities  the  corporation 
may  well  make  ordinances  that  such  noisome  trades  shall  be  in  some 
other  part  of  the  town.  But  if  a  butcher  or  chandler  or  other  such 
necessary  trader  allow  his  filth  to  remain,  to  the  nuisance  of  the  inhabi- 
tants, action  on  the  case  Ues,  or  indictment  for  the  nuisance ;  for  this 
is  the  fault  of  the  butcher  or  chandler  and  not  of  the  trade,  because  he 
does  not  avoid  it  as  he  well  may.  And  the  indictment  was  adjudged 
void.* 


HALL'S   CASE. 
King's  Bench.     1671. 
[Reported  1  Ventris,  169.] 

Complaint  was  made  to  the  Lord  Chief  Justice  by  divers  of  the 
inhabitants  about  Charing-Cross,  that  Jacob  Hall  was  erecting  of  a 
great  booth  in  the  street  there,  intending  to  show  his  feats  of  activity, 
and  dancing  upon  the  ropes  there,  to  their  great  annoyance  by  reason 
of  the  crowd  of  idle  and  naughty  people  that  would  be  drawn  thither, 
and  their  apprentices  inveigled  from  their  shops. 

Upon  this  the  Chief  Justice  appointed  him  to  be  sent  for  into  the 
court,  and  that  an  indictment  should  be  presented  to  the  grand  jury  of 

1  8.  c,  2  Roll.  Abr.  139,  Rankett's  Case. 

2  But  Bee  Morley  v.  Pragnell,  Cro.  Car.  367.  —  Ed. 


CHAP.  XIX.]  ANONYMOUS. 


843 


this  matter;  and  withal  the  court  warned  him,  that  he  should  lirocccd 
no  further. 

But  he  being  dismissed,  they  were  presenlly  aOer  informed  that  he 
caused  his  workmen  to  go  on.  Whereupon  they  commanded  the  mar- 
shal to  fetch  him  into  court,  and  being  brought  in  and  duman.l.d. 
how  he  durst  go  on  in  conlemi.t  of  the  court,  lie  will.  g,v;ii  impudence- 
adirmed,  that  he  had  the  King's  warrant  for  it,  and  promise  to  bear  him 
harmless. 

Then  they  required  of  him  a  recognizance  of  £300,  lliat  he  should 
cease  further  building;  which  he  obstinately  refused  and  was  commii- 
t€d.  And  the  court  caused  a  record  U)  be  made  of  this  nuisimce,  .-ih 
upon  their  own  view  (it  being  in  tiieir  way  to  Westminster),  and  awanh-d 
a  writ  thereupon  to  the  Sheriff  of  Middlesex,  commanding  him  to  pros- 
trate the  building. 

And  the  court  said,  things  of  this  nature  ought  not  to  bo  place! 
amongst  people's  habitations,  and  that  it  was  a  nuisance  to  llie  King's 
royal  palace  ;  besides  that  it  straitened  the  way  and  was  insullerable  in 
that  respect.^ 


ANONYMOUS. 
Nisi  Pkius.     1699. 

[Reported  12  Modern,  3i2.] 

One  was  indicted  for  a  nuisance  for  keeping  several  barrels  of  gun- 
powder in  a  house  in  Brentford  town,  sometimes  two  days,  sometimes  a 
week,  till  he  could  conveniently  send  them  to  London.     Wherein 

Holt,  C.  J.,  resolved,  1st.  That  to  support  this  indictment  there  must 
be  apparent  danger,  or  mischief  already  done.' 

2dly.  Though  it  had  been  done  for  fifty  or  sixty  j'ears,  yet  if  it  ho  a 
nnisance  time  will  not  make  it  lawful. 

3dly.  If,  at  the  time  of  setting  up  this  house  in  which  the  guni)Owdcr 
is  kept  there  had  been  no  houses  near  enough  to  be  prejudiced  by  it, 
but  some  were  built  since,  it  would  be  at  peril  of  builder. 

4thh-.  Though  gunpowder  be  a  necessary  thing,  and  for  defence  of 
the  kingdom,  yet  if  it  be  kept  in  such  a  place  as  it  is  dangerous  to  the 
inhabitants  or  passengers  it  will  be  a  nuisance. 

1  See  Rex  v.  Russell,  6  East,  427  ;  Rex  v.  Mocrc,  3  B.  &  Ad.  184.  —  Ed. 
'  See  Peo.  v.  Sands,  1  Johns.  78.—  Ed. 


844  REX  V.  CROSS.  [chap.  xix. 


REX   y.   SMITH. 
King's  Bench.     1726. 

[Reported  1  Strange,  704.] 

The  defendant  was  convicted  on  an  indictment  for  making  gi'eat 
noises  in  the  night  with  a  speaking  trumpet,  to  the  disturbance  of  the 
neighborhood ;  which  the  court  held  to  be  a  nuisance,  and  fined  the 
defendant  £5. 


REX  V.   CROSS. 
Westminster  Sittings.     1826. 

[Reported  2  C.  Sf  P.  483.] 

Indictment  for  a  nuisance  in  keeping  a  house  for  slaughtering  horses 
at  a  place  called  Bell  Isle,  in  the  parish  of  St.  Mary,  Islington.  There 
were  also  counts  framed  on  a  private  Act  of  Parliament,  59  Geo.  III. 
c.  39,  s.  88,  on  which  no  question  was  raised.     Plea,  nob  guilty. 

It  was  proved  that  very  offensive  smells  proceeded  from  the  defend- 
ant's slaughtering  house  to  the  annoyance  of  those  who  lived  near  it, 
and  also  of  persons  who  passed  along  a  turnpike  road,  leading  from 
Battle  Bridge  to  Holloway. 

The  defendant  put  in  a  certificate  and  license  under  the  statute  26 
Geo.  III.  c.  71,  s.  1,  authorizing  him  to  keep  a  house  for  the  slaughter- 
ing of  horses, 

Abbott,  C.  J.  This  certificate  is  no  defence,  and  even  if  it  were  a 
license  from  all  the  magistrates  in  the  county  to  the  defendant  to 
slaughter  horses  in  this  very  place  it  would  not  entitle  the  defendant  to 
continue  the  business  there  one  hour  after  it  becomes  a  public  nuisance 
to  the  neighborhood.  If  a  certain  noxious  trade  is  already  established 
in  a  place  remote  from  habitations  and  public  roads,  and  persons  after- 
wards come  and  build  houses  within  the  reach  of  its  noxious  effects,  or 
if  a  public  road  be  made  so  near  to  it  that  the  carrying  on  of  the  trade 
becomes  a  nuisance  to  the  persons  using  the  road ;  in  those  cases  the 
party  would  be  entitled  to  continue  his  trade,  because  his  trade  was 
legal  before  the  erection  of  the  houses  in  the  one  case  and  the  making 
of  the  road  in  the  other.  Verdict,  Guilty. 


CHAP.  XIX.]  EEGINA  V.   STEPHENS.  ^45 


REGINA  V.    STEPHENS. 
Queen's  Bench.     18GG. 
[Repoi-ted  L.  li.  1  Q.  B.  702.] 

Indictment.  First  count  for  obstructing  the  navigation  of  a  piil.lic 
river  called  the  Tivj  by  casting  and  throwing,  and  causing  to  be  cast 
and  thrown,  slate  stone  and  rubl)i.sh  in  and  upon  the  soirand  bed  of 
the  river,  and  thereby  raising  and  producing  great  mo.nids  projecting 
and  extending  along  the  stream  and  waterway  of  the  river. 

Second  count  that  the  defendant  was  the  owner  of  large  quantities 
of  slate  quarried  from  certain  sl-ite  quarries  near  the  river  Tiw,  and 
that  he  unlawfully  kept,  permitted,  and  suffered  to  be  and  remain  large 
quantities  of  slate  sunk  in  the  river,  so  that  the  navigation  of  the  river 
was  obstructed. 

Plea,  not  guilt}'. 

The  indictment  was  tried  before  Blackburn,  J.,  at  the  last  spring 
assizes  for  Pembrokeshire,  when  the  following  facts  were  proved  :  — 
The  Tivy  is  a  public  navigable  river  which  flows  through  Lleohryd 
Bridge,  thence  by  Kilgerran  Castle,  and  from  thence  past  the  town  Of 
Cardigan  to  the  sea.  About  twenty  ^ears  ago  the  Tivy  was  navigable 
to  wnthin  a  quarter  of  a  mile  of  Llechryd  Bridge,  from  which  place  a 
considerable  traffic  was  carried  on  in  limestone  and  culm  by  means  of 
lighters. 

The  defendant  is  the  owner  of  a  slate  quarry  called  the  Castle  Quarry, 
situate  near  the  Castle  of  Kilgerran,  which  he  has  extensively  worked 
since  1842.  The  defendant  had  no  spoil  bank  at  the  quarr}-.  The 
rubbish  from  the  quarrj'  was  stacked  about  five  or  six  yards  from 
the  edge  of  the  river.  Previous  to  1847,  the  defendant  erected  a  wall 
to  prevent  it  from  falling  into  the  river,  but  in  that  year  a  heavy  flocxl 
carried  awa}'  the  wall,  and  with  it  large  quantities  of  the  rubbish. 
Quantities  of  additional  rubbish  were  from  time  to  time  shot  by  the 
defendant's  workmen  on  the  same  spot,  and  so  slid  into  the  river.  By 
these  means  the  navigation  was  obstructed,  so  that  even  small  boats 
were  prevented  from  coming  up  to  Llechryd  Bridge. 

The  defendant  being  upwards  of  eighty  3'ears  of  age  was  una1)le  pcr- 
sonallj-  to  superintend  the  working  of  the  quarry,  which  was  managed 
for  his  benefit  by  his  sons.  The  defendant's  counsel  was  projjared  to 
offer  evidence  that  the  workmen  at  the  quarry  had  been  prohibited  both 
by  the  defendant  and  his  sons  from  thus  depositing  the  rubliish  ;  and 
that  they  had  been  told  to  place  the  rubbish  in  the  old  excavations 
and  in  a  place  provided  for  that  purpose.  The  learned  judge  intimatrd 
that  the  evidence  was  immaterial ;  and  he  directed  the  jury  that  as  the 
defendant  was  the  proprietor  of  the  quarry,  the  quarrying  of  which  was 
carried  on  for  his  benefit,  it  was  his  duty  to  take  all  proper  precautions 


846  BEGINA   V.   STEPHENS.  [CHAP.  XIX. 

to  prevent  the  rubbish  from  falling  into  the  river,  and  that  if  a  sub- 
stantial part  of  the  rubbish  went  into  the  river  from  having  been  im- 
properly stacked  so  near  the  river  as  to  fall  into  it,  the  defendant  was 
guilt}-  of  having  caused  a  nuisance,  altliough  the  acts  might  have  been 
committed  by  his  workmen,  without  his  knowledge  and  against  his 
general  orders.     The  jur}-  found  a  verdict  of  guilty. 

A  rule  having  been  obtained  for  a  new  trial,  on  the  ground  that  the 
judge  misdirected  the  jury  in  telling  them  that  the  defendant  would  be 
liable  for  the  acts  of  his  workmen  in  depositing  the  rubbish  from  the 
quarries  so  as  to  become  a  nuisance,  though  without  the  defendant's 
knowledge  and  against  his  orders, 

//  S.  Giffard,  Q.  C,  and  Poland,  showed  cause.^ 

J.  W.  Bowen  and  Hughes^  in  support  of  the  rule. 

Mellor,  J.  In  this  case  I  am  of  opinion,  and  in  my  opinion  ray 
Brother  Shee  concurs,  that  the  direction  of  my  Brother  Blackburn 
was  right.  It  is  quite  true  that  this  in  point  of  form  is  a  proceeding 
of  a  criminal  nature,  but  in  substance  I  think  it  is  in  the  nature  of  a 
civil  proceeding,  and  I  can  see  no  reason  why  a  different  rule  should 
prevail  with  regard  to  such  an  act  as  is  charged  in  this  indictment 
between  proceedings  which  are  civil  and  proceedings  which  are  crim- 
inal. I  think  there  may  be  nuisances  of  such  a  character  that  the  rule 
I  am  applying  here,  would  not  be  applicable  to  them,  but  here  it  is  per- 
fectly clear  that  the  only  reason  for  proceeding  criminally  is  that  the 
nuisance,  instead  of  being  merely  a  nuisance  affecting  an  individual,  or 
one  or  two  individuals,  affects  the  public  at  large,  and  no  private  indi- 
vidual, without  receiving  some  special  injury,  could  have  maintained  an 
action.  Then  if  the  contention  of  those  who  say  the  direction  is  wrong 
is  to  prevail,  the  public  would  have  great  difficulty  in  getting  redress. 
The  object  of  this  indictment  is  to  prevent  the  recurrence  of  the  nui- 
sance. The  prosecutor  cannot  proceed  by  action,  but  must  proceed  by 
indictment,  and  if  this  were  strictl}'  a  criminal  proceeding  the  prosecu- 
tion would  be  met  with  the  objection  that  there  was  no  mens  rea :  that 
the  indictment  charged  the  defendant  with  a  criminal  offence,  when  in 
reality  there  was  no  proof  that  the  defendant  knew  of  the  act,  or  that 
he  himself  gave  orders  to  his  servants  to  do  the  particular  act  he  is 
charged  with  ;  still  at  the  same  time  it  is  perfectly  clear  that  the  defend- 
ant finds  the  capital,  and  carries  on  the  business  which  causes  the 
nuisance,  and  it  is  carried  on  for  his  benefit ;  although  from  age  or  in- 
firmity' the  defendant  is  unable  to  go  to  the  premises,  the  business  is 
carried  on  for  him  by  his  sons,  or  at  all  events  by  his  agents.  Under 
these  circumstances  the  defendant  must  necessarily  give  to  his  servants 
or  agents  all  the  authority  that  is  incident  to  the  carrying  on  of  the  busi- 
ness. It  is  not  because  he  had  at  some  time  or  other  given  directions 
that  it  should  be  carried  on  so  as  not  to  allow  the  refuse  from  the  works 
to  fall  into  the  river,  and  desired  his  servants  to  provide  some  other 

1  Arguments  of  counsel  are  omitted.     ' 


I 


CHAP.  XIX.]  KING   V.   PEOPLE. 


8-47 


place  for  depositing  it,  that  when  it  has  fallen  into  the  river,  an.l  has 
become  prejudicial  to  the  public,  he  can  say  he  is  not  liable  on  an  indict- 
ment for  a  nuisance  caused  by  the  acts  of  his  servants.  It  api>eur.s  l^, 
me  that  all  it  was  necessary  to  prove  is,  tluU  tUu  nuisunci-  was  cauK«(l 
in  the  carrying  on  of  tlie  works  of  the  (piarry.  Tliat  bt-ing  bo  my 
Brother  Blackburn's  direction  to  the  jury  was  quite  ri'MiL 

I  agree  that  the  authorities  that  bear  directly  ui>on  the°cjise  are  very 
few.  In  the  case  of  Reg  v.  Russell,  3  E.  &.  B.  942,  2.T  L.  J.  M.  C.  17:i 
the  observations  of  Lord  Campbell  might  have  been  justified  bv  tl»e  cir- 
cumstances of  that  case,  though  as  1  understand  it  the  judgment  of  llic 
other  judges  did  not  proceed  on  the  same  reasons.  It  is  therefore  oidy 
the  opinion  of  Lord  Campbell  as  applied  to  that  case.  "Whether  there 
is  or  is  not  any  distinction  between  that  case  and  tlio  pn-.sent  mnv  Ik- 
open  to  question  ;  but  if  there  is  no  distinction.  I  sliould  bi;  preparccl 
rather  to  have  acted  upon  the  reasons  which  iulluoiiccd  the  otiier  jndg.-s 
than  those  which  influenced  Lord  Campbell.  Inasmuch  as  the  objitt 
of  the  indictment  is  not  to  punish  the  defendant,  but  really  to  prevent  the 
nuisance  from  being  continued,  I  think  that  the  evidence  which  would 
support  a  civil  action  would  be  sufficient  to  support  an  indictment. 

The  rule  must  be  discharged.  As  I  have  said,  my  Brother  Suee  con- 
curs with  me  in  that  opinion. 

Blackburn,  J.  I  need  only  add  that  I  see  no  reason  to  change  the 
opinion  I  formed  at  the  trial.  I  only  wish  to  guard  myself  against  it 
being  supposed  that  either  at  the  trial  or  now,  the  general  rule  that  a 
principal  is  not  criminally  answerable  for  the  act  of  his  agent  is  in- 
fringed. All  that  it  is  necessary  to  say  is  this,  that  where  a  person  main- 
tains works  by  his  capital,  and  employs  servants,  and  so  carries  on  the 
works  as  in  fact  to  cause  a  nuisance  to  a  private  right,  for  which  an 
action  would  lie,  if  the  same  nuisance  inflicts  an  injury  ujion  a  puldic 
right  the  remedy  for  which  would  be  by  indictment,  the  evidence  which 
would  maintain  the  action  would  also  support  the  indictment.  That  is 
all  that  it  was  necessary  to  decide  and  all  that  is  decided. 

Utile  discharged. 


KING  V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1881. 

[Reported  83  iV.  Y.  587] 
Andrews,  J.  The  indictment  charges  the  plaintiff  in  error  with 
keeping  a  disorderly  and  common  bawdy  and  gambling  house,  con- 
cluding ad  commune  7iocftmentum.  The  evidence  abundantly  sus- 
tained the  charge,  and  justified  the  jury  in  finding  that  tlie  defendant 
kept  a  house  to  which  gamblers  and  prostitutes  resorted  for  the  pur- 
pose of  gambling  and  prostitution. 


848  KING   V.    PEOPLE.  [CHAP.  XIX. 

The  court,  in  the  course  of  the  charge,  stated  to  the  jury  that  it  was 
not  necessar}',  to  constitute  the  offence  of  keeping  a  disorder!}'  house, 
that  the  public  should  be  disturbed  by  noise,  and  refused  to  charge 
that,  in  order  to  convict  the  defendant  of  keeping  a  disorderly  house, 
tiie  jury  must  find  that  the  house  was  so  kept  as  to  disturb,  annoy,  and 
disquiet  the  neighbors  and  the  people  passing  and  repassing  the  house. 
An  exception  was  taken  to  the  charge  in  this  respect  and  to  the  refusal 
to  charge  as  requested. 

The  exception  was  not  well  taken.  The  keeping  of  a  common 
bawdy  or  gambling  house  constitutes  the  house  so  kept  a  disonlerly 
house  and  an  indictable  nuisance  at  common  law.  Rex  v.  Dixon,  10 
Mod.  335  ;  1  Hawk.  P.  C.  693.  It  is  a  public  offence,  for  the  reason 
that  its  direct  tendency  is  to  debauch  and  corrupt  the  public  morals,  to 
encourage  idle  and  dissolute  habits  and  to  disturb  the  public  peace.  It 
is  not  an  essential  element  that  it  should  be  so  kept  that  the  neighbor- 
hood is  disturbed  by  the  noise,  or  that  the  immoral  practices  should  be 
open  to  public  observation.  The  law,  it  is  true,  gives  a  remed}'  by 
indictment  against  those  who  unduly  disturb  the  quiet  of  a  community 
by  noises  which  tend  to  impair  the  enjoyment  of  life,  but  it  does  not 
refuse  cognizance  of  those  for  greater  public  injuries,  which  arise  from 
practices  which  destroy  the  peace  of  families  and  disturb  and  under- 
mine the  foundations  of  social  order  and  virtue. 

The  court  also  charged,  that  if  prostitutes  came  to  the  defendant's 
saloon  for  the  purpose  of  prostitution,  and  there  consummated  their 
intent,  to  the  knowledge  and  with  the  consent  of  the  defendant,  the 
jur}'  should  find  him  guilty.  The  defendant's  counsel  excepted,  and 
requested  the  court  to  charge  that,  in  order  to  find  the  defendant 
guilty  of  keeping  a  bawdy  house,  the  jury  must  find  that  he  kept  his 
house  for  the  resort  and  unlawful  commerce  of  lewd  people  of  both 
sexes.  The  court  said  :  "I  have  charged  the  jury  on  that  subject,  and 
decline  to  change  my  charge ;  I  have  substantially'  so  charged  ;  "  and 
exception  was  taken  to  the  refusal  of  the  court  to  charge  as  requested. 
In  this  there  was  no  error.  If  the  defendant's  house  was  the  resort  of 
prostitutes  plying  their  vocation  there,  to  the  knowledge  of  the  defend- 
ant, the  house  was  a  bawdy  house ;  and  this  was  what  in  substance  the 
court  charged,  and  the  court,  in  stating  that  it  had  charged  substan- 
tially as  requested  by  the  defendant's  counsel,  gave  the  defendant  the 
benefit  of  the  definition  contained  in  his  request. 

The  defendant's  counsel  requested  the  court  to  charge  that  the  play- 
ing of  cards  in  the  defendant's  house  does  not,  of  itself,  make  it  a 
gambUng  house;  and  the  court,  in  reply,  said:  "Except  that  it  is  the 
gambling  for  raone}'  that  makes  it  a  disorderl}'  house."  The  defend- 
ant's counsel  excepted.  The  request  was  directed  to  the  point  that 
the  mere  playing  of  cards  in  a  house  did  not  constitute  the  house  a 
gambling  house ;  and  the  remark  of  the  court,  in  response  to  the  • 
request,  amounted  to  an  assent  to  this  proposition. 

The  defendant's  counsel  claims  that  the  remark  is  to  be  construed 


I 


CHAP.  XIX.]  C0M.M0NWEALT1I    V.    MILLKlt. 


R4n 


as  affirming  that  if  the  jury  should  fuul  that  the  deffiuluul  iHrmiii.d 
gaming  in  his  house  on  a  single  occasion  he  could  !.,■  convicted.  liut 
the  remark  of  the  court  is  to  be  construed  in  connection  wilh  the  pi,  - 
vious  charge  and  the  occasiun  on  which  it  was  made.  The  court  had 
Slated  to  the  jury  that  if  the  defendant  kept  a  gan.bling  houHe,  wheio 
gamblers  resorted  to  play  for  money  and  tlid  so  phiv,  to  the  knoHh-dgc 
of  the  defendant,  he  was  guilty.  The  counsel  reijuested  the  court  U, 
charge  a  specific  proposition,  which  the  court  substantiullv  couHenttd 
to,  and  added  the  element  to  which  the  defendant's  recjut'st  poinUd, 
viz.,  that  the  playing  must  be  for  money  in  order  to  make  the  house  u 
gambling  house.  If  the  defendant  desired  a  specific  instruction  upon 
the  point  now  made,  he  should  have  requested  it.  The  court  hud 
properly  defined  the  offence  of  keeping  a  gambling  house,  and  the 
remark  of  the  court  clearly  referred  to  a  house  of  this  character. 

These  are  all  the  exceptions  relied  upon  by  counsel.  We  think  none 
of  them  are  well  taken,  and  that  the  conviction  should  be  alllrmed. 

All  concur.  Jiahjintnt  ajirmtd 


COMMONWEALTH   v.   MILLER. 
Supreme  Court  of  Pennsylvania.     1890. 

[Reported  139  Pa.  77.] 

Williams,  J.^  The  defendants  own  and  operate  a  refinery  where 
crude  petroleum  and  its  products  are  prepared  for  market.  There  are 
four  acres  within  the  enclosure  fronting  on  the  Ohio  river.  The  Tilts- 
burgh  &  Western  Railroad  passes  in  front  of  it,  along  the  river's  edge. 
The  Cleveland  &  Pittsburgh  Railroad  runs  upon  the  street  directly  in 
the  rear.  The  cit}'  of  Allegheny,  like  its  sister  city  Pitlsl»urgh,  owes 
its  growth  and  prosperit}'  to  the  extent  of  its  mnnufacturing  inle^e^Ls, 
and  the  river  front  is  almost  wholly  given  over  to  these  great  industries. 
The  indictment  charges  that  the  defendants'  refinery  is  a  public  and 
common  nuisance,  because  of  the  emission  therefrom  of  certain  noxious 
and  offensive  smells  and  vapors,  and  because  the  oils  and  gases  stored 
and  used  therein  are  inflammable,  explosive,  and  dangerous.  Tlie  jury, 
under  the  instructions  of  the  court,  found  the  defendants  guilty,  .and 
the  sentence  which  has  been  pronounced  requires  the  abatement  or 
destruction  of  a  plant  in  which  some  three  hundred  thousand  dollars 
are  said  to  be  invested,  and  which  gives  employment  to  seventy-five 
men.  The  assignments  of  error  are  quite  numerous,  but  the  imj)ortant 
questions  raised  are  few. 

The  first  four  assignments,  the  sixth,  ninth,  tenth,  and  sixteenth, 
may  be  considered  together,  as  they  relate  more  or  less  directly  to  the 
same  subject.     The  learned  judge  had  his  attention  directeil  by  the 

1  Part  of  the  opinion  only  is  given. 
M 


850  COMMONWEALTH   V.   MILLER.  [CHAP.  XIX. 

written  points  to  the  definition  of  a  public  nuisance,  and  to  the  circum- 
stances under  which  the  defendants'  refinery  had  been  estabUshed  and 
maintained  for  man}'  years  ;  and  he  instructed  the  jury  that  the  charac- 
ter of  the  location  where  the  refinery  was  established,  the  nature  and 
importance  of  the  business,  the  length  of  time  it  had  been  in  operation, 
the  capital  invested,  and  the  influence  of  the  business  upon  the  growth 
and  prosperity  of  the  community,  were  no, defence  to  an  indictment  for 
nuisance.  Among  other  expressions  used  by  him  are  the  following : 
^'  It  is  no  defence  to  an  indictment  for  a  common  nuisance  that  the 
business  complained  of  has  been  in  operation  many  years."  "  I  do 
not  think  the  size  of  an  establishment  makes  any  difference."  And 
again :  "  Neither  is  it  a  defence  in  any  measure  that  the  business  is  a 
useful  one,"  etc.  If  it  had  been  an  admitted  or  an  established  fact  that 
the  business  of  the  defendants  was  a  common  nuisance,  and  they  had 
attempted  to  justify  its  maintenance,  these  instructions  would  have 
been  appropriate  ;  but,  the  question  before  the  jury  was  whether  the 
business  was  a  nuisance.  The  decision  of  that  question  depended  upon 
a  knowledge  of  all  the  circumstances  peculiar  to  the  business,  the  place, 
its  surroundings,  and  the  employments  of  the  persons  in  the  vicinity. 
While  no  one  of  these,  nor  all  together,  would  justify  the  maintenance 
of  a  nuisance,  they  might  be  sufficient,  and  they  certainly  were  compe- 
tent evidence  from  which  the  jury  might  determine  whether  the  defend- 
ants' refinery  was  a  common  nuisance  at  the  place  where  it  was  located, 
and  this  was  tne  question  to  be  determined  by  the  trial.  They  might 
make,  therefore,  or  contribute  to  make,  a  defence  to  the  indictment  try- 
in<y.  This  distinction  between  an  effort  to  justify  an  admitted  or  estab- 
lished nuisance,  and  a  denial  that  the  business  complained  of  amounts 
to  a  nuisance,  was  evidently  in  the  mind  of  the  learned  judge,  but,  in 
the  haste  that  attends  jury  trials,  he  failed  to  place  it  clearly  before  the 
jury.  He  did  say  that  the  facts  referred  to  had  "  weight,  and  are  to  be 
considered  in  determining  the  degree  of  the  injury  produced,  and 
whether  the  effects  are  so  annoying,  so  productive  of  inconvenience 
and  discomfort,  that  it  can  be  said  to  be  really  so  prejudicial  to  the 
public  as  to  be  a  nuisance,"  but,  following  an  explicit  statemeni  that 
these  same  facts  were  "  no  defence  to  an  indictment  for  erecting  and 
maintaining  a  nuisance,"  such  as  they  were  then  trying,  the  jury  was 
left  without  an  adequate  presentation  of  the  defence. 

That  such  facts  are  proper  for  consideration  and  may  make  a  defence, 
has  been  long  and  well  settled :  Wood  on  IsTuis.,  §  430.  The  same  rule 
was  appUed  in  this  state  in  Huckenstine's  App.,  70  Pa.  102;  and  in 
Commonwealth  v.  Reed,  34  Pa.  275.  The  character  of  the  business 
complained  of  must  be  determined  in  view  of  its  own  peculiar  location 
and  surroundings,  and  not  by  the  application  of  any  abstract  prin- 
ciple. Wood  V.  Sutcliffe,  16  Jur.  75.  In  the  case  last  cited,  Lord 
Cranworth  referred  to  a  case  at  nisi  prius,  in  which  he  had  instructed 
the  jury  to  consider,  not  only  whether  the  quantity  of  smoke  complained 
of  would  amount  to  a  nuisance,  considered  abstractly,  but  "  whether  it 


CHAP.  XIX.]        PEOPLE   V.    DETROIT    WHITE    LEAH    WOHKS.  851 

is  a  nuisance  to  a  person  livin-  i„  Shi.-Ms,"  which  was  the  name  of  the 
town  m  which  the  business  was  con.h,cU.|.  Ji  wu.s  i„  Umb  msm-cl  U.ul 
the  instructions  complained  of  in  the  first,  second,  and  Unixl  Lt-cifirH 
tions  were  inadequate.  They  gave  the  general  rule  without  the  nuahll- 
cations  which  the  situation  of  the  defendants'  reHneiv  entitU-d  hirn  to 
The  right  to  pure  air  is,  in  one  sense,  au  ah.solule  one  for  all  pernon* 
have  the  right  to  life  and  heallh,  and  su<h  a  conl.-u.nnutiou  of  the  air  an 
IS  injurious  to  health  cannot  he  justilied  ;  but,  in  Huothor  Hen»c  it  xn 
relative,  and  depends  upon  one's  surroundings.  People  who  live  in 
great  cities  that  are  sustained  by  manufacturing  enterprises  must  iieeeH- 
sanly  be  subject  to  many  annoyances  and  positive  discon.forLs  l,v 
reason  of  noise,  dust,  smoke,  and  odors,  more  or  less  <liHflgroeable 
produced  by  and  resulting  from  the  business  that  supports  the  city' 
They  can  only  be  relieved  from  them  by  going  int/>  the  open  countrv. 
The  defendants  had  a  right  to  have  the  character  of  their  business 
determined  in  the  light  of  all  the  surrounding  circumstances,  including 
the  character  of  Allegheny  as  a  manufacturing  city,  ami  the  manner  of 
the  use  of  the  river  front  for  manufacturing  purposes.  If,  looked  at  in 
this  way,  it  is  a  common  nuisance,  it  should  be  removed ;  if  not.  it  mav 
be  conducted  without  subjecting  the  proprietors  to  the  pecuniary  loss 
which  its  removal  would  involve. 


PEOPLE  V,   DETROIT  WHITE  LEAD   WORKS. 
Supreme  Court  of  Michigan.     1890. 

[Reported  82  Mich.  471.] 

Grant,  J.^  This  case  is  brought  to  this  court  by  writ  of  certiorari 
from  the  Recorder's  Court  of  the  city  of  Detroit. 

The  defendants  were  convicted  of  unlawfully  and  wilfullv  creating 
and  maintaining  a  nuisance,  consisting  of  the  creation  and  emission  of 
unwholesome,  oftensive,  and  nauseating  odors,  smells,  vajx^rs,  and 
smoke,  to  the  great  damage  and  common  nuisance  of  all  |>eople  living 
in  the  neighborhood  thereof,  and  of  all  people  passing  and  repassing 
on  the  streets  and  alleys  adjacent  thereto,  contrary  to  an  ordinance  of 
the  city  in  such  case  made  and  provided,  being  section  T).  chap.  UU, 
Rev.  Ord.  1884.  The  ordinance  in  question  is  set  forth  in  the  return  of 
the  judge  to  the  writ. 

The  defendant  the  Detroit  White  Lead  Works  is  a  coriX)ration  or^'an- 
ized  under  the  laws  of  the  state.  Defendant  Hinchnian  is  president, 
defendant  Dean  is  vice-president,  and  defendant  Rogers  is  freasuror 
and  manager.     The  defendants  Ilinchman,   Dean,   and   liogers  weru 

^  Fart  of  the  opinion  is  omitted. 


852  PEOPLE   V.   DETROIT   WHITE   LEAD   WORKS.       [CHAP.  XIX. 

fined  $1  each,  and  the  defendant  the  Detroit  White  Lead  Works  $10 
and  costs.     No  other  penalty  was  imposed. 

The  facts  found  and  returned  by  the  Recorder's  Court  clearly  estab- 
lish a  nuisance,  according  to  all  the  authorities.  These  facts  so  found 
are  conclusive  in  this  court,  and  we  can  only  apply  the  law  to  the 
facts.  Counsel  for  defendants  cannot,  therefore,  seriously  contend  that 
we  can  enter  into  a  discussion  and  determination  of  that  question, 
especially  as  the  evidence  is  not  before  us. 

Defendants  are  not  aided  by  the  fact  found  by  the  court  that,  during 
the  time  covered  by  the  complaint,  the  business,  in  all  respects,  had 
been  carried  on  in  a  careful  and  prudent  manner,  and  nothing  had  been 
done  by  those  managing  it  that  was  not  a  reasonable  and  necessary 
incident  of  the  business  ;  nor  by  the  further  fact  that,  when  the  defend- 
ant company  commenced  its  business,  the  lands  in  the  vicinity  of  its 
works  were  open  common.  It  is  undoubtedly  true  that  the  defendants, 
or  their  predecessors,  established  their  works  at  a  point  remote  from 
habitation,  possibly  in  recognition  of  the  fact  that  such  a  business  was 
at  least  not  pleasant,  if  not  injurious,  to  the  health  and  enjoyment  of 
those  living  near  it.  The  city  of  Detroit  has  extended  to  the  defend- 
ants' works,  and  the  owners  of  adjoining  lands  have  erected  dwellings 
thereon.  This  they,  of  course,  had  the  legal  right  to  do.  The  defend- 
ants cannot  be  protected  in  the  enjoyment  of  their  property,  and  the 
carrying  on  of  their  business,  if  it  becomes  a  nuisance  to  people  living 
upon  the  adjoining  properties,  and  to  those  doing  legitimate  business  with 
them.  Whenever  such  a  business  becomes  a  nuisance,  it  must  give 
way  to  the  rights  of  the  public,  and  the  owners  thereof  must  either 
devise  some  means  to  avoid  the  nuisance,  or  must  remove  or  cease  the 
business.  It  may  not  be  continued  to  the  injury  of  the  health  of  those 
living  in  its  vicinity.  This  rule  is  founded  both  upon  reason  and 
authority.  Nor  is  it  of  any  consequence  that  the  business  is  useful  or 
necessary,  or  that  it  contributes  to  the  wealth  and  prosperity  of  the 
community.  Wood,  Nuis.,  §  19;  Queen  v.  Train,  2  Best  «fe  S.  640; 
Works  V.  Railroad  Co.,  5  McLean,  425;  Respublica  v.  Caldwell,  1  Dall. 
150 ;  Ross  V.  Butler,  19  N.  J.  Eq.  296 ;  Robinson  v.  Baugh,  31  Mich. 
290. 

It  is  true  that,  in  places  of  population  and  business,  not  everything 
that  causes  discomfort,  inconvenience,  and  annoyance,  or  which,  per- 
haps, may  lessen  the  value  of  surrounding  property,  will  be  condemned 
and  abated  as  a  nuisance.  It  is  often  difficult  to  determine  the  bound- 
ary line  in  many  such  cases.  The  carrying  on  of  many  legitimate 
businesses  is  often  productive  of  more  or  less  annoyance,  discomfort, 
and  inconvenience,  and  may  injure  surrounding  property  for  certain 
purposes,  and  still  constitute  no  invasion  of  the  rights  of  the  people  living 
in  the  vicinity.  Such  a  case  was  Gilbert  v.  Showerman.  23  Mich.  448. 
A  case  similar  in  its  facts  was  before  this  court  In  Robinson  v.  Baugh, 
.SI  Mich.  290,  which  was  distinguished  by  the  court  from  (lilbert  if. 
Showerman.     In  the  former  case  the  business  was  legitimate  and  neces- 


I 


CHAP.  XIX.]        PEOPLE    V.    DETROIT    WHITE    LI'AI)    WOKKS.  853 

sary.  The  suit  was  brought  in  equity  to  cujoiu  tlie  huniness  at  the 
place  where  carried  on.  The  facts  were  that  smoke  aii.I  soot  from  de- 
fendant's  works  were  often  borne  by  the  wind  m  h'ir<,'o  amounbs  to  llie 
premises  of  the  couiphiinants,  and  sometimes  enten-d  their  dwfllings  by 
the  chimneys,  and  tlirough  cracks  by  the  doors  and  windows,  iD  bucU 
measure  as  to  be  extremely  offensive  and  harn)ful,  and  the  nolne  ho 
great  as  to  be  disagreeable,  and  positively  hurtful,  the  jar  annovini; 
and  disturbing  the  sick,  and  in  some  cases  causing  sul)stantl:il  dHumge 
to  dwellings.     The  court  laid  down  the  rule  (page  29G)  jis  follows :    - 

"  However  lawful  the  business  may  be  in  itself,  and  however  suitable 
in  the  abstract  the  location  may  be,  they  cannot  avail  to  authorize  the 
conductor  of  the  business  to  continue  it  in  a  way  which  directly,  palpably, 
and  substantially  damages  the  property  of  others,  unless,  huK-ed,  the 
operator  is  able  to  plant  himself  on  some  peculiar  ground  of  grant, 
covenant,  license,  or  privilege  which  ought  to  prevail  against  complaWi 
ants,  or  on  some  prescriptive  right,  and  which  in  this  country  can 
rarely  happen." 

No  case  has  been  cited,  and  we  think  none  can  be  found,  sustain- 
ing the  continuance  of  a  business  in  the  midst  of  a  populous  c<im- 
munity,  which  constantly  produces  odors,  smoke,  and  soot  of  such  a 
noxious  character,  and  to  such  an  extent,  that  they  produce  headache, 
nausea,  vomiting,  and  other  pains  and  aches  injurious  to  health,  and 
taint  the  food  of  the  inhabitants. 

All  the  defendants  were  properly  con^icted.  The  officers  of  the  com- 
pany are  jointly  responsible  for  the  business.  It  is  not  necessary  to 
conviction  that  they  should  have  been  actually  engaged  in  work  upon  the 
premises.  The  work  is  carried  on  by  employees.  The  directors  and 
officers  are  persons  primarily  responsible,  and  therefore  the  proper 
ones  to  be  prosecuted.  A  fine  can  be  collected  against  the  defendant 
company,  and  therefore  it  is  subject  to  prosecution. 


854  Murray's  case.  [chap,  xx. 


CHAPTER  XX. 
CONTEMPT  AND  DISBARMENT. 

REX   V.   REVEL. 
King's  Bench.     1721. 

[Reported  1  Strange,  420.] 

Indictment  against  the  defendant  for  saying  of  Sir  Edward  Lawrence, 
a  justice  of  peace,  in  the  execution  of  his  office,  "  You  are  a  rogue 
and  a  liar."  And  Wearg  moved  after  verdict  j^^o  rege,  in  arrest  of 
judgment,  that  though  the  justice  might  have  committed  him  for  the 
contempt,  yet  the  words  are  not  indictable,  since  it  is  not  to  be  pre- 
sumed they  would  provoke  a  justice  of  peace  to  a  breach  of  the 
peace,  which  is  the  reason  why  indictments  have  been  held  to  lie  for 
words. 

/Sed  per  curiam.  The  allowing  he  might  be  committed  shows  they 
were  indictable.  It  is  true  the  justice  may  make  himself  judge,  and 
punish  him  immediately ;  but  still  if  he  thinks  proper  to  proceed  less 
summarily  by  way  of  indictment,  he  may ;  the  true  distinction  is, 
that  where  the  words  are  spoke  in  the  presence  of  the  justice,  there  he 
may  commit ;  but  where  it  is  behind  his  back  the  party  can  be  only 
indicted  for  a  breach  of  the  peace.'  Cases  cited,  Salk.  698;  3  Mod. 
139  ;  2  Show.  207 ;  1  Roll.  Rep.  79  ;  Regina  v.  Langley,  Soley,  Nuns, 
and  Legasseck.  Judgment  pro  rege. 


MURRAY'S   CASE. 
King's  Bench.     1751. 

[Repoi-ied  1  Wilson,  299.] 

An  habeas  corpus  directed  to  the  keeper  of  Newgate  to  bring  up  the 
body  of  Alexander  Murray,  Esq.  ;  whereupon  it  was  returned  and  cer- 
tified to  the  court  that  the  prisoner  by  an  order  of  the  House  of  Com- 
mons of  the  7th  of  February  was  committed  to  Newgate  for  an  high 
contempt  of  that  House,  and  he  was  not  to  be  permitted  to  have  pen, 
ink,  or  paper,  nor  should  any  body  be  permitted  to  see  him  without 
order  of  the  House  ;  that  the  keeper  was  afterwards  served  with  several 
orders  of  the  House  to  permit  the  doctor  and  apothecary  and  some 

1  See  Reg.  v.  Lefroy,  L.  R.  8  Q.  B.  134.  —  Ed. 


CHAP.  XX.]  MURRAY'S   CASE. 


855 


relations  to  see  h.m,  and  being  now  l.rougl.t  to  the  bar.  an.l  apoearine 
o  be  in  a  very  bad  state  of  lu-alth  from  his  imprisonu.enl.  Air  Julm 
1  h.lhps  Baronet,  a  meml,er  of  the  House  (who  sel.lu,..  ea.no  U,  the  bar) 
moved  that  he  might  be  ad.nitted  to  bail  upon  the  haUas  o.rpus  Act 
31  Car.  II.  cap.  2,  alleging  that  this  statuio  was  one  of  the  great  bull 
warks  of  English  liberty,  and  if  the  conunilment  be  not  for  treason  or 
felony,  or  by  legal  process  issuing  out  of  some  court  here,  he  is  entilUul 
to  be  discharged  out  of  custody  upon  bail.  He  said  it  is  well  known 
that  the  House  of  Commons  cannot  take  bail,  and  if  this  court  will  not 
admit  the  prisoner  to  bail,  it  will  be  in  the  power  of  the  House  of  Com- 
mons perpetually  to  imprison  ;  tlie  /aiheas  corpus  Act  is  of  higher 
authority  than  an  order  of  the  Commons,  who  are  but  one  branch  of 
the  legislature,  and  however  their  orders  mav  bind  theni.selves,  vet 
nothing  less  than  an  Act  of  Parliament  shall  bind  the  whole  body  oT  iho 
people  and  nation.  Liberty  is  the  birthright  of  every  subject,  "and  ho 
has  a  right  to  apply  here  for  it. 

Wright,  J.  It  appears  upon  the  return  of  this  hnheas  cnrptta  that 
Mr.  Murray  is  committed  to  Newgate  by  the  House  of  Commons  "  for 
an  high  and  dangerous  contempt  of  privileges  of  tliat  House  ;  "  and  it 
is  now  insisted  upon  at  the  bar  that  this  is  a  bailable  case  witliin  the 
meaning  of  the  habeas  corjms  Act. 

To  this  I  answer  that  it  has  been  determined  by  all  the  judges  to  the 
contrary,  that  it  could  never  be  the  intent  of  that  statute  to  give  n  judge 
at  his  chamber,  or  this  court,  power  to  judge  of  the  privileges  of  the 
House  of  Commons. 

The  House  of  Commons  is  undoubtedly  an  high  court,  and  it  i3 
agreed  on  all  hands  that  they  have  power  to  judge  of  their  own  privil- 
eges. It  need  not  appear  to  us  what  the  contempt  was,  for  if  it  did 
appear  we  could  not  judge  thereof 

Lord  Shaftesbury  was  committed  for  a  contempt  of  the  House,  and 
being  brought  here  by  an  habeas  corpus,  the  court  remanded  him.  And 
no  case  has  been  cited  wherever  this  court  interposed. 

The  House  of  Commons  is  superior  to  this  court  in  this  particular, 
this  court  cannot  admit  to  bail  a  person  committed  for  a  contempt  in 
any  other  court  in  Westminster  Hall. 

Denison,  J.  This  court  has  no  jurisdiction  in  the  present  ca.se.  We 
granted  the  habeas  corpus  not  knowing  what  the  commitment  was,  but 
now  it  appears  to  be  for  a  contempt  of  the  privileges  of  the  House  of 
Commons.  What  those  privileges  (of  either  Ilousei  are  we  do  not 
know,  nor  need  they  tell  us  what  the  contempt  was,  beeause  we  cannot 
judge  of  it ;  for  I  must  call  this  court  inferior  to  the  House  of  Com- 
mons with  respect  to  judging  of  their  privileges  and  contempts  ngainf*l 
them.  I  give  my  judgment  so  suddenly  because  I  think  it  a  clear  case, 
and  requires  no  time  for  consideration. 

Foster,  J.  The  law  of  Parliament  is  part  of  the  law  of  the  land,  and 
there  would  be  an  end  of  all  law  if  the  House  of  Commons  could  n«.t 
commit  for  a  contempt;  all  courts  of  record  (even  the  lowe^l)  may 


856  REGINA   V.    SKIPWORTH.  [CHAP.  XX. 

commit  for  a  contempt.  And  Lord  Holt,  though  he  differed  with  the 
other  judges,  yet  agreed  the  House  might  commit  for  a  contempt  in  the 
face  of  the  House.  As  for  the  prisoner's  illness  we  can  take  no  notice 
of  it,  having  no  power  at  all  in  this  case. 

The  prisoner  was  remanded.     Lee,  C.  J.,  absent. 


REGINA  V.    SKIP\YORTH. 

REGINA  V.  CASTRO,  alias  ORTON,  alias  TICHBORNE. 
Queen's  Bench.     1873. 
[Reported  L.  R.  9  Q.  B.  230.1] 

This  was  a  motion  for  the  committal  of  the  defendants  for  contempt 
of  court.  Defendant  Castro  was  the  claimant  of  the  Tichborne  estates 
in  an  action  which,  after  a  protracted  hearing  terminated  in  a  nonsuit, 
and  the  plaintiff  was  committed  for  trial  upon  a  charge  of  perjur}', 
■which  was  appointed  for  trial  at  bar.  In  the  meanwhile  the  defendant 
and  his  friends,  of  whom  the  other  defendant  Skipworth  was  one,  had 
held  meetings  in  various  parts  of  the  country  to  excite  sympathy  for 
his  cause  and  collect  funds  for  his  defence.  After  the  hearing  of  the 
case  against  Onslow  and  Whalley  (L.  R.  9  Q.  B.  219, 12  Cox  C.  C.  358) 
a  meeting  was  held  at  Brighton,  at  which  the  defendants  were  present, 
Skipworth  taking  the  chair,  and  speeches  were  made  by  them  which 
were  the  subject  of  this  complaint,  taken  in  conjunction  with  other 
speeches  previously  made  at  other  places. 

It  appeared  from  the  affidavits  that  on  taking  the  chair  Mr.  Skipworth 
said :  — 

"  Ladies  and  Gentlemen,  —  It  is  encouraging  to  find  your  reception 
after  the  degrading  spectacle  I  have  witnessed  in  the  Court  of  Queen's 
Bench  to-day  in  London.  Nothing  less  than  this,  that  two  honorable 
members  of  Parliament  had  been  brought  up,  I  may  saj',  as  criminals 
for  advocating  truth  and  justice  throughout  the  countr}'.  Yes,  it  was  a 
sad  spectacle  for  England  that  we  have  come  to  this.  No  less  than  a 
great  infringement  upon  our  rights  and  liberties  !  If  they  had  a  just 
cause  on  the  other  side  you  ma}-  depend  upon  it  it  would  never  have 
been  done.  What  do  they  mean  when  they  rob  a  man  of  everything 
he  possesses?  I  will  go  on  to  advocate  the  cause  of  my  friend  Sir 
Roger  Tichborne.  I  live  quietly  upon  my  own  estate.  I  have  my  home 
and  family  and  friends  ;  I  have  my  affairs  to  attend  to ;  but  when  duty 
calls  me  forth  I  obey  the  call,  and  when  I  see  such  degradation  as  I 
witnessed  to-day,  these  honorable  men  brought  up  and  treated  as  crim- 
inals, and  obliged  to  apologize  in  the  most  degrading  way,  and  fined 

^  80.  12  Cox  C.  C.  371.    The  first  paragraph  of  the  case  is  taken  from  this  report. 


CHAP.  XX.]  REGINA    V.    SKIPWOUTH.  R,-- 

for  doing  their  duty  to  tlioir  fellow  countrvmon,  I  remember  that  I  was 
chairman  of  that  meeting  their  conduct  at  which  was  calU-.l  i.,  ..tirsii.,,, 
The  Lord  Chief  Justice,  in  his  jud-Mu-nt,  pn^fcssc-d  how  mild  and* 
moderate  he  was  to  them  as  they  hud  ap.,!,,-!/.,.,!,  and  thai  if  uhvIkmIv 
else  shoidd  offend  in  the  same  way  he  should  he  trcatt-d  with  uic  full 
rigor  of  the  law,  not  only  with  a  line,  but  willi  in.priHonment  I  hurl 
this  intmiation  back  with  the  contempt  with  which  he  tn-nU-d  lh.se 
honorable  persons.  1  care  not  for  his  intimidation.  I  will  (stand  ii.re 
where  my  duty  calls  me  in  defiance  of  his  vul-ar  threats.  I  am  not 
going  to  be  intimidated  when  my  age  and  I  will  sav  duty  to  my 
country  calls  me  forth.  I  could  see  there  was  no  chance  of  justice 
being  done  by  those  four  judges  from  the  first.  I  could  sec  that  tli.  ir 
minds  were  made  up  to  convict  my  friends.  And  what  was  this  but  to 
prevent  free  public  discussion  in  this  country?  I  would  have  cut  my 
hand  off  before  I  would  have  acknowledged  that  I  had  been  doing 
wrong  and  apologized  when  there  was  nothing  to  apologize  for.  I  wouM 
let  them  send  me  to  prison  rather  than  have  acknowledged  what  was 
untrue.  Better  the  dungeon  than  such  a  degradation.  What  is  life 
worth  without  liberty  and  honor?  If  this  man  be  Sir  R.  TiclilK.rne 
then  there  is  a  conspiracy  to  keep  him  out  of  his  estates.  And  I  .s.iy 
that  Lord  Chief  Justice  Cockburn  was  not  the  fit  person  to  try  anvthing 
in  connection  with  the  case.  I  am  sorry  to  say  that  he  has  so  long  pre- 
judged the  case  that  he  is  unfitted  to  try  the  case  as  an  irnparlial 
judge." 

The  affidavits  also  showed  that  the  defendant  had  himself  addressed 
the  meeting,  and  in  the  course  of  his  speech,  after  going  through  the 
course  of  the  trial  of  the  ejectment  at  length,  and  alluding  to  what  the 
Attorney-General  had  said  and  done  at  the  trial,  he  proceeded  :  — 

"  The  Attorne^'-General  also  said  in  the  House  of  Commons  that  it 
was  an  insult  to  common  sense  to  call  meTichborne.  Then  why  should 
not  I  call  on  him  to  come  forward  for  contempt  of  court  in  prejudicing 
me  before  trial.  I  will  go  further  than  that,  for  I  am  determined  to  see 
to  the  bottom  of  it.  Four  3'ears  ago  the  Lord  Chief  Justice  of  Knulaud 
publicl}'  denounced  me  as  a  rank  impostor  at  his  chdj.  I  know  of  otlnr 
occasions  but  cannot  prove  them,  so  will  not  mention  them.  Hut  I  can 
prove  that  subsequently,  within  these  last  two  months,  at  a  party  where 
a  lady  friend  of  mine  was,  he  distinctly  turned  round  in  a  very  angry 
manner  to  those  ladies  and  said  it  was  a  disgrace  to  mention  my  name 
in  decent  societ}-.  I  think  I  have  a  right  to  call  upon  him  to  answer 
for  contempt  of  court;  I  do  not  suppose  they  will  grant  the  rule  ;  but 
rest  assured  I  will  apply  for  it.  And  I  maint;\in,  ladies  and  gentlemen, 
that  he  had  no  right  to  sit  on  that  bench  to-day.  At  St.  James's  Hall 
my  friend  Mr.  Onslow  stated  that  the  Lord  Chief  Justice  was  not  a  fit 
justice  to  sit  on  my  forthcoming  trial.  He  gave  as  his  reasons  those  I 
have  mentioned,  and  that  he  had  also  during  the  late  tri.il  while  sittinij 
by  the  side  of  Judge  Bovill,  written  on  a  piece  of  paper,  —  '  Had  I 
been  judge  and  you  leading  counsel  we  would  have  had  this  fellow  in 


858  EEGINA  V.   SKIPWORTH.  [CHAP.  XX. 

Newgate  long  ago.'  He  was  a  part}'  concerned,  and  if  he  had  the 
slightest  delicacy  for  his  honor  he  would  never  have  sat  on  the  bench 
to-da}'.  So  much  have  I  heard  that  I  intend  to  petition  Parliament 
against  his  sitting  on  my  forthcoming  trial  No  doubt  I  shall  be  able 
to  prevent  him.  If  I  do  not  I  will  go  into  that  court  without  counsel, 
attorney,  or  witnesses,  and  let  him  crush  me  as  he  thinks  proper.  If 
the  Lord  Chief  Justice  has  got  to  sit  and  adjudicate  in  my  case  I  will 
offer  no  evidence,  but  throw  myself  upon  the  country." 

Upon  the  reading  of  these  affidavits,  the  court  (Blackburn,  Mellor, 
Lush,  and  Quain,  JJ.)  directed  that  a  rule  should  go  against  Mr. 
Skipworth  and  the  defendant  also,  though  the  prosecution  had  apphed 
against  the  former  only. 

January  29.  Mr.  Skipworth  and  the  defendant  were  present  in 
court  pursuant  to  the  rule  ;    neither  appeared  by  counsel. 

Mr.  Skipworth  had  filed  an  affidavit,  in  which  he  sought  to  justify  his 
conduct,  and  he  avowed  that  he  attended  the  meeting  at  Brighton  with 
the  distinct  intention  of  setting  the  "  threat"  of  the  court  at  defiance. 

The  defendant  sought  to  palliate  his  conduct  under  tlie  peculiar  cir- 
cumstances of  his  case ;  and  he  appealed  to  the  court  that  if  they  fined 
him  or  sent  him  to  prison  he  could  not  pay  and  would  be  prejudiced  in 
preparing  his  defence. 

Blackburn,  J.  In  this  case  there  have  been  two  persons  brought 
before  us  who  were  called  upon  by  an  order  of  the  court  to  show  cause 
why  the}'  should  not  be  committed  for  a  contempt  of  court ;  and  the 
first  question  upon  which  the  court  is  to  decide  is,  whether,  under  the 
circumstances,  what  has  taken  place  is  contempt  of  court,  and  whether 
the  court  can  adjudge  them  to  have  been  guilty  of  contempt. 

The  phrase  ' '  contempt  of  court "  often  misleads  persons  not  lawyers, 
and  causes  them  to  misapprehend  its  meaning,  and  to  suppose  that  a 
proceeding  for  contempt  of  court  amounts  to  some  process  taken  for 
the  purpose  of  vindicating  the  personal  dignity  of  the  judges,  and  pro- 
tecting them  from  personal  insults  as  individuals.  Very  often  it  hap- 
pens that  contempt  is  committed  by  a  personal  attack  on  a  judge  or  an 
insult  offered  to  him ;  but  as  far  as  their  dignity  as  individuals  is  con- 
cerned it  is  of  very  subordinate  importance  compared  with  the  vindica- 
tion of  the  dignity  of  the  court  itself;  and  there  would  be  scarcely  a 
case,  I  think,  in  which  any  judge  would  consider  that,  as  far  as  his 
personal  dignity  goes,  it  would  be  worth  while  to  take  any  steps. 
But  there  is  another  and  a  much  more  important  purpose  for  which 
proceedings  for  contempt  of  court  become  necessary.  When  a  case  is 
pending,  whether  it  be  civil  or  criminal,  in  a  court  it  ought  to  be  tried 
in  the  ordinary  course  of  justice,  fairly  and  impartially.  In  the  pres- 
ent case  there  has  been  an  indictment  preferred  against  one  of  the 
persons  now  before  us  for  perjury,  and  that  indictment  stands  to  be 
tried,  and  will  come  on  in  due  course  of  trial  at  law  to  be  tried,  and  it 
ought  to  be  tried  fairly  and  impartially,  the  judge  and  jury  deciding  on 
the  evidence  produced,  subject  to  cross-examination  in  the  presence  of 


CHAP.  XX.]  REGINA   V.    SKIPWOUTIL  859 

both  parties,  each  party  making  his  comments  in  tl.e  presence  of  each 
other  and  the  presence  of  the  judge,  and  the  case  shoul.l  be  Ihcn  fuhly 
and  properly  tried  in  that  way.  ■' 

Now,  it  may  happen,  and  in  many  ca.ses  does  liap|K-n,  il.at  pernons 
interfere  for  the  purpose  of  prevc-nting  that  ordinary  c.iurse  of  justice. 
There  are  many  decided  cases  in  wl.ieh  sue),  an  allempl  hiu*  U-.-a  u.ade  • 
sometimes  it  has  been  done  by  an  attack  upon  the  ju.lge,  thuuj.|,  c<„„i 
paratively  rarely.     Sometimes  it  has  been  done  by  t,^  i„g  u,  ir.ihice  tl.o 
judge   to  change  his  opinion  by  flattery,  and  eve.,  in  some  cu.se8  hy 
offering  bribes  to  him.     Thee  have  been  attempts  made  to  fhu...'e  the 
ordinaiy  course  and  cause  the  judge  to  take  a  i)arti(uhir  view  of  the 
matte.-.     More  comi.ionly  the  mode  adopted  has  bee.,  that  of  an  att*-mpt 
to  i.ifluence  the  trial  by  attacking,  deterring,  and  frightening  witm-shcH, 
or  by  commenting  on  the  case,  or,  as  it  is  called,  appeali.ig  to  the 
public,  and  endeavori.ig  by  statements  made  ex  parte,  without  Uie  other 
side  being  heard,  and  without  tl.e  means  of  testb.g  tl.e  matt.-r  which 
the  law  requires  to  piejudge  the  case  and  pi-ejudice  the  trial ;  a.id  in  all 
those  ways  great  mischief  may  be  done  by  interfering  with  the  dm;  and 
ordinary  course  of  law,  and  causing  justice,  whether  c.in.ii.al  or  civil, 
not  to  be  administe.-ed  in  the  way  which  is  oi-dinarily  pursued.     Most 
things  which  a.-e  done  in  that  way  may  be  liable  to  pu.ii^hment  by  the 
criminal  law,  or  they  may  be  conspiracies  punishable  by  the  criininal 
law,  or  they  may  be  assaults  punishable  by  tl.e  criminal  law  ;  and 
generally,  if  there  are  attemi)ts  to  influence  the  due  coui-.se  of  justiet; 
they  would  be  punishable  by  the  cii.ninal  law.     But  then  if  we  are  to 
wait  for  that  to  be  done  by  oidina.T  ei-iminal  process  and  an  onlinaiy 
trial  there  might  be  great  mischief  done,  because  that  process  is  slow, 
and  before  that  process  could  come  into  train  the  mischief  would  bo 
done  by  the  due  administration  of  justice  being  hampered  and  thwurU.-d. 
For  that  reason  fi-o.n  the  eailiest  times  tl.e  Superior  Courts  at  West- 
minster, the  Superior  Courts  of  Record,  the  Courts  of  Htjuity  and  the 
Courts  of  Common   Law  have  always  had  power  to  deal  summarily 
with  such  cases.     When  an  action  is  pending  in  the  court  and  anything 
is  done  which  has  a  tendency  to  obstruct  the  ordina.y  course  of  justice 
or  to  pi'ejudice  the  trial  there  is  a  power  give.,  to  the  courts  by  tl.e 
exercise  of  a  summary  jurisdiction  to  deal  with  a.id  prevent  any  such 
matter  which  should  interfere  with  the  due  course  of  justice,  and  that 
power  has  been  exercised,  I  believe,  from  the  earliest  times  that  the 
law  has  existed.     It  certainly  has  been  exei"cised   i.i  tl.e  manner  in 
which  we  now  exercise  it.     See  Lechmere,  Charlton's  case  (2  My.  «fc 
Cr.  316)  in  Chanccy  ;  and  see  Hawkins',  P.  C.  b.  ii.  ch.  22;  vol.  ii. 
p.  206,  8th  ed.  by  Curwood  ;  vol.  iii.  p.  272,  7th  ed.  by  Leach,  as  to  Iho 
practice  in  the  Court  of  Queen's  Bench.     The  courts  of  ju.sticc  U-ing 
clothed  by  the  law  with  that  power,  a  duty  is  cast  on  the  court  in  a 
proper  case,  and  where  they  see  it  is  necessary  that  tl.e  court  pI.ouM 
summarily  interfere  to  prevent  something  that  would  oli.struct  the  duo 
course  of  justice  to  exercise  that  power.     In  the  present  case  couu&eJ 


860  REGINA   V.    SKIPWORTH.  [CHAP.  XX. 

for  the  prosecution  did  not  ask  that  the  defendant  should  be  brought 
before  us.  We  thought,  however,  on  the  materials  before  us,  that  tliere 
was  a  case  made  out  of  his  being  a  party  to  the  obstruction  of  justice ; 
and  thinking  there  was  a  prima  facie  case,  and  that  the  interposition 
of  the  court  was  required  to  prevent  a  course  continuing  which  would 
obstruct  the  due  administration  of  justice  in  a  case  now  pending  before 
us,  we  thought  it  right  to  order  that  the  defendant  should  appear  here 
to-day.  He  has  attended  here  to-day,  and  has  defended  liimself,  and 
we  have  listened  to  what  he  said,  and  I  am  bound  to  say  that  lie  has 
defended  himself  with  great  propriety,  and,  making  a  proper  allowance 
for  his  want  of  technical  knowledge,  has  brought  forward  all  the  points 
that  could  be  brought  forward  by  the  best  counsel  in  his  defence. 
Nevertheless,  we  have  to  consider  now  whether  or  not  he  has  not  been 
guilty  of  a  contempt  of  court  within  the  definition  I  have  given.  The 
defendant  urged  that  we  ought  to  allow  the  case  to  go  to  trial  before  a 
jury,  because  he  might  prove  the  trutii  of  what  he  had  alleged.  The  truth 
of  it  has  nothing  to  do  with  the  question.  The  question  at  present  is, 
is  he  trying  to  interfere  with  the  course  of  justice?  I  hope  and  trust 
that  justice  will  be  done,  whether  he  be  innocent  or  guilty,  but  that  will 
be  tried  and  determined  in  the  due  course  of  law,  and  after  hearing 
both  sides  fully  and  completely.  But,  however  true  the  statements  made 
might  be,  to  prejudge  the  trial  is  none  the  less  a  contempt  of  court, 
and  one  which  we  must  check.  We  make  no  inquiry  whether  the  state- 
ments are  true  or  false,  but  what  we  do  inquire  is,  whether  the  proceed- 
ings which  have  been  taken  are  such  as  to  show  it  is  intended  to  divert 
and  change  the  course  and  prevent  the  ordinary  course  of  law,  and  to 
prejudge  the  question  by  what  is  called  appealing  to  the  public,  so  as 
to  prejudice  the  minds  of  the  jurors  who  may  come  to  try  the  case,  or  per- 
haps to  deter  the  jur^'  from  pursuing  the  course  they  would  otherwise 
take.  I  do  not  think  it  necessary  to  cite  authorities  to  show  that  the 
view  of  the  law  I  am  now  pronouncing  is  no  novelty,  but  has  existed 
for  centuries  ;  but  I  would  refer  to  one  case,  and  one  case  onl}',  for  the 
sake  of  the  language  which  Lord  Cottenham  uses  in  reference  to  the 
matter,  which  I  think  most  accurately  expresses  the  law,  and  also 
because  it  is  a  case  in  which  a  considerable  number,  but  far  from  being 
all  the  cases,  were  cited.  I  mean  Lechmere  Charlton's  case,  2  M}'.  & 
Cr.  316,  where  there  had  been  an  attempt  to  interfere  with  the  course 
of  justice  in  the  Court  of  Chancery  b}'  letters  threatening  the  master  in 
Chancery.  Lord  Cottenham,  in  considering  the  matter,  made  an  order, 
not  on  the  motion  of  the  party,  but  just  as  we  have  done  here,  an  order 
of  the  court  itself,  the  court  taking  notice  of  things  brought  before 
it  on  affidavits.  Mr.  Lechmere  Charlton  was  ordered  to  attend  and  to 
answer  the  charge.  Mr.  Charlton,  relying  on  his  privilege  as  a  member 
of  Parliament,  would  not  come,  and  then  Lord  Cottenham  adjudged 
him  guilty  of  contempt  and  passed  sentence  of  imprisonment ;  and,  in 
doing  so,  after  citing  a  great  many  authorities,  he  proceeds  with  this 
passage,  which  I  will  read;  "All  these  authorities  tend  to  the  same 


CHAP.  XX.]  EEGINA    V.    SKll'WOimL 


8Cl 


point ;  they  show  that  it  is  immaterial  what  measures  are  ailople.l  if  the 
object  IS  to  taint  the  source  of  justice,  au<l  to  oi.lain  u  resull  of  Wai 
proceedings  different  fioin  that  which  would  follow  in  Uie  ordinary 
course.  It  is  a  contempt  of  the  hiuh^st  order;  and  although  «uch 'a 
foolish  attempt  as  this  cannot  be  supposed  to  have  mn  cdcct  it  in 
obvious  that  if  such  cases  were  not  i)unished,  the  m.xst  b'erious  c-on^e- 
quences  might  follow.  If  I  consulted  my  own  i.er.onul  f.chi...H  upon 
the  subject  1  should  pass  by  these  letters  as  a  foolish  attempt  al  undue 
luUuence  ;  but  if  1  were  to  adoi)t  that  course,  1  should  consider  m>  Ht-lf 
guilty  of  a  very  great  dereliction  of  my  high  duty.  The  order  mii-t 
therefore  be  made  absolute  for  the  commitlal  of  Mr  Charlton  to  the 
Fleet."     2  My.  &  Cr.  at  p.  342. 

I  quote  those  words  of  Lord  Cottenham  because  tlu-y  really  do 
express  very  nearly  the  kind  of  feeling  which  I  have  myself,  and  which 
I  believe  my  brothers  also  entertain  and  feel  on  the  subject.  Ceriainly 
it  seems  to  me  impossible,  on  hearing  these  proceedings,  to  doubt  thai 
both  these  persons  who  are  brought  before  us  have  been  guiliy  of  an 
attempt  to  change  the  course  of  justice  ;  both  have  attempU'd  to  tleler 
by  vituperation  the  Lord  Chief  Justice  from  taking  any  part  in  llie 
trial,  and  to  prejudice  the  trial  by  attacking  the  witnesses  themselves, 
and  also  have  attempted  to  what  is  called  inHuence  the  public  mind  «.f 
the  people,  which  is  in  other  words  to  prejudice  the  jurors.  That  Ihi-y 
have  done  this,  and  that  they  intended  to  do  so,  I  cannot  doubt.  Mr. 
JSkipworth  has  in  so  many  words  said  he  did  intend  to  do  that.  There 
can  be  no  question  that  such  was  the  purpose  here,  and  I  caimot  but 
think  that  that  is  a  contempt.  Then  we  have  to  consider  whether  it  is 
not  a  foolish  attempt  such  as  Lord  Cottenham  refers  to.  Certainly  I 
think  it  is,  as  far  as  the  contempt  here  constitutes  an  attempting  to 
alter  the  course  of  justice,  because  it  is  an  attempt  which  would  he 
utterly  ineffectual,  and  which  no  one,  I  think,  who  knows  anything 
about  it  could  ever  imagine  could  be  effectual  at  all.  Before  we  iy<r 
heard  anything  about  these  meetings,  it  came  to  be  a  question  whether 
this  case  was  to  be  tried  before  a  single  judge  at  Kiai  J*nit.s,  or 
whether  it  was  to  be  a  trial  at  bar,  which  is  a  trial  where  the  court  is 
not  presided  over  by  an  individual  judge,  but  where  three  judges  sit, 
and  the  senior  judge  present,  who  possibly  may  not  be  the  Lord  Chief 
Justice,  presides,  and  where  whoever  presides  has  no  more  authority 
than  those  sitting  with  him.  Each  has  an  equal  voice  in  ruling  what 
the  law  is,  and  if  there  is  a  difference  of  opinion  each  has  a  right  to 
express  it,  and  I  believe  in  the  old  times  there  have  been  instances,  — 
indeed,  there  was  one  rcmarkal)Ie  instance.  The  Trial  of  the  .Scyeu 
Bishops,  12  How.  St.  Tr.  183;  3  Mod.  212,  where  every  one  of  the 
four  judges,  taking  a  different  view  of  the  law,  gave  contradictory  sum- 
mings  up  to  the  jury,  which  resulted  in  the  acquitt.il  of  the  Hi.shops. 
which  I  believe  was  certainly  right.  Before  the  application  for  a  trial 
at  bar  the  Lord  Chief  Justice  had  stated  that  this  case  was  likely  to  l»e 
a  case  of  such  length  that  it  was  desirable  that  more  than  one  judge 


8G2  REGINA  V.   SKIPWORTH.  [CHAJ*.  XX. 

should  sit,  and  that  he  thought  that  at  the  trial  other  judges  should  sit 
and  assist  him,  and  as  it  was  likely  to  be  a  trial  of  great  magnitude  all 
of  us  agreed  that  it  would  be  a  very  desirable  course.  As  it  was,  the 
Attorney-General,  exercising  the  undoubted  prerogative  of  the  Ciown, 
required  a  trial  at  bar,  and  it  was  granted  as  of  course.  I  mention 
this  to  show  that  it  was  the  Lord  Chief  Justice's  personal  desire  that 
the  case  should  be  tried  not  before  him  alone,  but  before  the  court. 
Now,  when  that  course  has  been  settled  and  the  case  is  pending,  we 
find  these  meetings  held  for  the  purpose,  amongst  others  (of  which 
there  can  be  no  doubt  from  the  affidavits) ,  and  with  the  intention  b}' 
vituperation  of  preventing  the  Lord  Chief  Justice  sitting  upon  this  trial. 
I  need  hardly  say  that  it  will  have  no  such  effect.  I  may  say  there  is 
not  the  slightest  doubt,  and  never  has  been  the  slightest  doubt  in  the 
mind  of  any  one  individual  in  the  court,  that  it  would  have  been  a 
great  dereliction  of  duty  if  we  were  in  the  slightest  degree  to  alter  the 
arrangement  in  consequence  of  these  meetings  which  have  been  held  ; 
and  the  Lord  Chief  Justice  himself  was  of  opinion  that  it  was  his  dut}' 
to  preside  at  the  trial,  and  every  individual  member  of  the  court  agrees 
with  him.  There  have  been  here  vituperation  and  attacks  made  con- 
cerning what  the  Lord  Chief  Justice  is  supposed  to  have  said  or  done. 
It  is  not  right  that  a  judge,  or  a  person  occupying  the  position  of  the 
Lord  Chief  Justice,  when  personal  attacks  are  made  on  him,  should 
come  forward  and  meet  them  and  explain  them,  and  that  is  well  known 
to  those  who  make  the  attack,  and  certainly  that  knowledge  does  in 
my  mind  render  the  conduct  of  those  who  attack  a  judge  in  that  way, 
to  use  the  mildest  term,  neither  just  nor  decorous.  We  say  nothing 
whatever  consequently'  about  these  imputations.  But  I  must  proceed 
further.  I  think  that  I  maj-  say  with  propriety,  as  it  has  been  arranged 
that  I  am  not  to  be  one  of  the  judges  who  should  try  the  case,  that  I 
have  the  firmest  conviction  that  when  the  trial  comes  on  it  will  be  con- 
ducted b}'  those  who  are  on  the  bench,  as  it  would  have  been  if  noth- 
ing of  this  sort  had  been  said  or  brought  forward,  with  absolutely  the 
same  impartialit}',  the  same  care  to  see  that  in  all  that  is  done  ever}' 
point  that  makes  in  favor  of  the  defendant  in  the  indictment  shall  be 
fairly  and  properly  considered,  and  at  the  same  time  with  the  same 
firmness  of  intention  to  see  that  justice  is  done,  with  which  the  trial 
would  have  been  conducted,  had  the  case  come  on  in  the  ordinary' 
course  of  justice  before  judges  who  had  never  heard  a  word  about  it 
until  they  took  their  seats  on  the  bench  to  tr}'  the  case. 

Now  if  it  were,  as  Lord  Cottenham  said,  a  matter  of  consulting  my 
own  personal  feeling,  I  should  pass  it  b}'  as  being  an  ineffectual 
attempt,  which  was  utterly  incapable  of  producing  the  effect  intended ; 
but  I  think  we  cannot  possibly  do  so  without  a  dereliction  of  duty,  to 
use  Lord  Cottenham's  words.  We  all  agree  in  that,  that  we  could  not 
possibly  pass  it  b}'.  I  am  greatl3'  influenced  b}-  this,  that  though  here 
they  attempted  to  influence  the  people  by  what  is  called  appealing  to 
the  public,  though  that  in  the  present  case  is  utterl}'  ineffectual,  yet  it 


CHAP.  XX.]  REGINA   V.   SKII'WOKTIf. 


6G3 


may  very  well  occur  in  future  times  that  tln-re  inny  l>e  liistRnc-H  in 
which  that  would  be  far  fruiu  iiu-tlV-ctim!  aixl  iii(.i)eruliVf.  ']"li.-  mu-iuj.i 
might  be  very  formidable  and  reciuire  miuh  m-rve  to  reHint  it  We 
may  imagine  a  possible  case  of  a  pi-rson,  indicted  for  sedition  or  for 
higii  treason,  going  about  and  assemljling  people  and  addrcKhinjj  them. 
and  it  certainly  would  recjuire  eonsidL-rable  nerve  to  n-hisi  tlic  inflnmrc 
which  might  be  raised;  and  if  we  allowed  ourselveh  to  pass  bv  ihc 
case  in  wliich  the  claimant  has  bei-ii  doing  tin;  vi-ry  tiling  that  would 
be  done  there,  when  it  came  to  hv  a  case  of  that  'sort  our  hU(x-<«H«ors 
woidd  be  obliged  to  do  their  duty,  and  if  we  diil  not  now  interfere  wc 
should  be  creating  a  precedent  which  would  greatly  increase  their  difll- 
culties  of  dealing  with  it.  That  is  one  of  the  things  whith  gnally 
influences  me,  and  I  think,  besides,  its  being  a  public  scandal  is  not  to 
be  disregarded.  It  is  absolutely  essential  that  these  proceedings 
should  be  stopped. 

Looking,  therefore,  at  the  fact  that  both  the  persons  Wfore  us  have 
attended  these  meetings  with  the  intention  of  inlluencing  and  altering 
the  course  of  justice  and  prejudieing  the  trial  of  the  ease,  we  can  eoine 
to  no  other  conclusion  than  that  they  have  been  guilty  of  a  contempt  of 
court. 

Having  come  to  that  conclusion,  tlie  second  question  is,  what  shall  bo 
the  sentence  which  is  to  be  passed  upon  each  of  these  persons.  Hut 
there  is  first  one  thing,  which,  lest  it  should  be  misunderstood,  I  tliink  it 
is  as  well  to  explain,  namely,  the  absence  on  the  present  occasion  of  the 
Lord  Chief  Justice,  which  might  be  supposed  to  be  inconsistent  with 
what  I  have  stated.  But  we  have  to  determine  what  shall  Ik?  the 
amount  of  punishment  for  a  contempt  of  court  which  partly  c<msisted 
of  personal  attacks  upon  the  Lord  Chief  Justice  ;  and  where  that  is  the 
ease  there  is  a  risk,  of  course,  that  his  feelings  might  cause  him  to  l)e 
vindictive,  but  there  is  a  very  much  greater  risk  that,  from  his  anxiety 
that  his  feelings  should  not  lead  him  to  give  an  excess  of  punishment, 
he  would  be  too  lenient,  and  consequently  it  is  very  desirable  that  the 
matter  should  be  tried  and  adjudicated  upon  by  persons  who  are  m- 
fluenced  by  no  such  feelings.  Li  a  Court  of  Kquity,  where  the  judge  sits 
alone,  this  could  not  be  avoided  ;  he  must  himself  decide  it.  though  he 
himself  is  personally  concerned  ;  but  in  a  Court  of  Common  Law,  where 
there  are  several  judges,  the  matter  can  be  decided  without  the  pres- 
ence of  the  judge  who  has  been  personally  attacked  ;  and  for  that  re.i- 
son  the  Lord  Chief  Justice  was  of  opinion  that  it  was  far  better  th.it 
he  should  take  no  part  in  the  present  proceedings.  I  may  be  allowed 
to  say  that  I  think  it  was  a  right  and  dignified  course. 

Having  said  thus  much  I  come  to  the  consideration  of  what  slmll  l»o 
done  in  the  case  of  the  two  defendants.  Mr.  Ski[>worth's  cn^c  I  will  con- 
sider first.  I  certainly  can  see  no  mitigation.  He  has  delil>erateh  frnm 
the  first  corne  forward,  and  he  avows  it,  to  try  and  influence  tin'  trinl  of 
this  case,  and  he  asserts  the  claimant  is  perfectly  innocent,  and  wishes 
therefore  to  arouse  the  people,  as  is  his  phrase,  to  say  that  Ujc  trial 


864  REGINA   V.   SKIPWORTH.  [CHAP.  XX. 

shall  proceed  no  further  ;  and  so  he  goes  on  doing  what  was  a  contempt 
of  court.  Up  to  last  week  one  might  have  supposed  that  he  did  not 
know  that  what  he  was  doing  was  contrary  to  law.  Certainly  it  would 
be  going  a  great  way  to  say  that ;  but  last  week  he  was  present, 
according  to  his  own  statement,  when  Mr.  Whalley  and  Mr.  Onslow 
were  adjudged  to  have  been  guilty  of  contempt  and  sentenced  to  a  fine, 
lie  heard  that  judgment  in  this  court,  and  for  the  reasons  stated  then 
he  knew  it  was  a  wrong  thing  and  a  contempt  of  court  to  interfere  fur- 
ther with  the  proceedings  ;  and  having  lieard  this,  he  goes  down  to 
Brighton  and  attends  a  meeting  to  do  the  same  thing  the  very  same 
afternoon,  and  announces  there  that  he  was  present  at  the  hearing  of 
that  case  of  contempt,  and  uses  terms  of  abuse  of  the  Lord  Chief  Jus- 
tice, and  I  think  uses  terms  not  very  complimentary  to  the  rest  of  the 
court,  and  he  announces  his  determination  to  proceed  notwithstanding 
the  warning  of  the  court.  I  am  reminded  by  my  brother  Mellok  that 
this  is  done  by  a  person  who  is  a  barrister,  and  ouglit  to  liave  known 
better.  But  Mr.  Skipworth,  although  he  is  a  barrister,  certainly  appears 
not  to  be  a  lawyer.  There  has,  therefore,  been  an  aggravated  offence, 
and  it  is  absolutely  necessary  that  it  should  be  met  by  a  severe  sen- 
tence. We  must  therefore  impose  a  fine,  and  we  must  also  impose  a 
sentence  of  imprisonment.  The  fine  must  be  sufficient  not  only  for  the 
punishment  of  this  particular  contempt,  but  also  as  a  warning  to  other 
persons.  That  fine  should  be  sufficient  for  that  purpose,  but  should 
not  be  excessive ;  and  on  the  whole  we  think  a  fine  of  £500  is  the 
amount  which,  in  our  discretion,  we  ought  to  impose.  Further,  there 
must  be  a  term  of  imprisonment,  so  that  there  may  be  no  continuance 
of  the  course  which  Mr.  Skipworth  has  threatened  ;  and  taking  into 
account  that  the  trial  will  come  on  in  April,  and  that  imprisonment  till 
then  will  effectually  prevent  the  repetition  of  this  offence,  and  consider- 
ing it  also  as  an  adequate  and  proper  punishment  and  not  excessive 
for  the  offence  which  has  been  committed,  the  second  part  of  the  sen- 
tence will  be  that  he  be  imprisoned  for  the  term  of  three  calendar 
months,  and  also  be  imprisoned  until  the  fine  be  paid. 

The  defendant  in  the  indictment  has  committed  the  same  offence. 
That  he  intended  to  influence  the  course  of  justice  is  clear,  and  he  is 
consequentl}-  guilty  of  contempt ;  but  there  are  differences  in  his  case  ; 
he  is  a  party  to  the  matter,  and  is  a  person  upon  whom  the  court  would 
look  with  some  lenienc}' ;  but  although  some  latitude  should  be  given 
he  has  gone  far  beyond  it  in  the  present  case.  He  also  urged  in  his 
defence  what  is  true,  that  he  has  been  attacked  by  certain  portions  of  the 
press.  If  he  had  confined  himself,  when  going  to  these  meetings,  to  pro- 
testing against  the  articles  in  the  newspapers,  though  probably  it  might 
have  been  a  contempt  of  court,  I  think  it  is  one  which  we  should  not 
have  thought  proper  to  visit  with  any  punishment ;  but  then  he  went 
much  further,  and  we  cannot  but  say  there  has  been  a  contempt  of 
court,  by  an  improper  endeavor  to  prejudice  the  course  of  justice.  But 
then,  as  he  most  truly  said  and  forcibly  urged  in  his  defence,  we  must 


CHAP.  XX.]  STATE   V.    COPP. 


865 


take  care,  in  passing  sentence  upon  him,  that  wo  do  not  pass  such  a  K.n 
tence  as  w;ould  have  the  effect  of  cripphng  hi.n  in  his  .lefcncc,  or  i„  any 
^-ay  prejudicing  a  fair  trial ;  and  1  think  that  there  is  truth  iu  what  ho 
says,   that  a  hne    imposccl  upon  him   would  probably  be  onoud,  to 
deprive  him   of  the  funds    for  his  defence,  and  therefore  we  do  not 
impose  a  fine.     Then  if  we  order  a  term  of  impriso.unent  nimplv.  it 
migh    have  the  effect  of  preventing  him  from  being  able  to  ..mnnuniVatc 
with  his  witnesses  and  conduct  his  defence.     Hut  it  is  absolutely  cbhci, 
tial  that  these  proceedings   should  be  stopped,  and  taking  nil  thcge 
things  into  account,  we  think  tliat  the  right  course  to  take  will  l>e  to 
order  him  to  give  security,  himself  in  a  sum  of  X;-i()0,  and  one  or  more 
sureties  to  the  amount  of  £.500,  that  ho  he  of  g(Kxl  behavior   nnd  not 
guilty  of  any  contempt  of  this  court  for  the  space  of  three  month.s  from 
the  present  time,  and  to  be  imprisoned  until  such  security  he  given. 
Mellor,  Lush,  and  Quain,  JJ.,  concurred. 

Judgment  accordingly. 


STATE  V.  COPP. 
Superior  Court  of  Judicature  op  New  ITAMPsiiinK.     1814. 

[Reported  \b  N.  H.  212.] 

Indictment,  for  resisting  a  deputy  sheriff  in  the  discharge  of  his 
duty. 

The  indictment  alleged  that  on  the  19th  day  of  Febniarv,  isJI.  the 
respondent  assaulted  and  beat  one  John  INI.  Rowell,  then  and  there 
being  one  of  the  deputy  sheriffs  in  and  for  the  county  of  Hillsborough, 
legally  appointed  and  duly  qualified  to  discharge  the  duties  of  tliat 
office,  while  he  was  in  the  performance  of  a  lawful  and  necessary  order 
from  Isaac  Riddle,  Esquire,  one  of  the  justices  of  the  peace  for  said 
county,  made  in  the  trial  of  a  complaint  against  one  Ephraim  Stevens 
for  selling  ardent  spirits  without  license,  and  thus  unlawfully  obstructed 
and  hindered  the  said  Rowell  as  aforesaid. 

It  appeared  in  evidence  on  the  part  of  the  prosecution,  that  thiring 
the  trial  of  the  complaint  against  Stevens,  many  persons  were  prc^^ent, 
and  the  justice  several  times  ordered  the  respondent  to  remove  from  a 
position  he  had  taken  near  the  justice.  Upon  this  refusal,  the  justice 
ordered  Rowell  to  remove  him,  but  the  respondent  resisted  the  execu- 
tion of  the  order  and  was  removed  by  force.  SubseciuenOy  the  justice 
ordered  the  sheriff  to  remove  the  respondent  from  the  hall  in  which  the 
court  was  holden,  which  was  effected  by  the  aid  of  three  men.  the 
respondent  resisting  b}-  kicking  with  his  feet,  and  in  such  other  mode 
as  he  was  able. 

Rowell  testified  that  on  that  day,  and  before  and  after,  he  wa,s  % 

65 


866  STATE  V.  copp.  [chap.  XX. 

deput}'  of  the  sheriff  of  this  county,  and  that  on  the  occasion  referred  to, 
he  was  acting  in  his  capacit}-  as  an  officer  of  the  court. 

The  jury  found  the  respondent  guilty,  and  his  counsel  moved  to  set 
aside  the  verdict,  and  in  arrest  of  judgment,  for  the  following  reasons : 

3.    The  justice  had  no  authority  to  make  the  order  referred  to.^ 

Walker,  Attorney-General,  for  the  State. 

Morriso7i,  for  the  prisoner. 

Gilchrist,  J.     It  is  also  contended  that  the  justice  had  no  authority 
to  make  the  order  in  question. 

The  power  of  keeping  order,  and  of  requiring  a  decorous  and  proper 
demeanor  in  a  court  room  during  the  progress  of  a  trial,  lies  at  the  very 
foundation  of  the  administration  of  justice.  Without  it  there  can  be  no 
law  and  no  justice,  for  if  the  law  will  not  authorize  the  means  necessary 
to  ensure  its  observance  and  proper  administration,  it  must  remain  a 
dead  letter.  But  the  law  never  intended  that  the  prisoner  should  have 
the  power  of  stationing  himself  in  an}-  position  he  might  desire  during 
the  trial.  If  it  rested  with  him  to  select  the  location  he  might  find  most 
convenient,  he  might  see  fit  to  place  himself  upon  the  bench  or  in  the 
jur}'  box.  He  was  present  at  this  trial,  neither  as  a  party  nor  as  a  wit- 
ness. He  went  there  to  gratify  his  curiosity,  and  it  behooved  him  so 
to  conduct  as  not  to  disturb  the  proceedings  of  those  who  had  duties  to 
perform.  These  duties  cannot  be  discharged  unless  the  justice  pos- 
sesses the  power  upon  an  emergency  to  direct  the  removal  of  any  indi- 
vidual whose  presence  he  may  think  prejudicial  to  the  interests  of 
justice.  The  law  does  not,  indeed,  authorize  any  court  to  act  arbitrarily, 
and  unreasonably  exclude  persons,  but  the  right  to  have  the  courts 
open  is  the  right  of  the  public  and  not  of  the  individual.  If  every  person 
for  whom  there  is  sufficient  space,  has  a  right  to  be  in  court,  he  has  a 
right  to  be  in  any  part  of  it  where  there  is  sufficient  space,  and  the 
inconvenience  resulting  from  the  exercise  of  such  a  right  is  a  strong 
argument  against  its  existence.  It  will  be  in  many  cases  impossible 
that  a  proceeding  should  be  conducted  with  due  order  and  solemnity, 
and  with  the  effect  that  justice  demands,  if  the  presiding  magistrate, 
by  whatever  name  he  may  be  called,  has  not  the  control  of  the  proceed- 
ing, and  the  power  of  admission  or  exclusion,  according  to  his  own  dis- 
cretion. It  is  better  that  this  discretion  should  be  exercised  b}'  a  person 
acting  under  the  responsibility  of  an  official  oath,  than  that  it  should  be 
left  to  a  crowd  of  lounging  bystanders  to  enter  and  depart  as  their 
humors  might  dictate  ;  and  far  better  than  that  a  court  of  justice  should 
be  desecrated  by  such  lawless  conduct  as  was  exhibited  bj-  the  prisoner. 
Garnett  v.  Ferrand,  6  B.  &  C.  611.  We  think  this  objection  should  be 
overruled. 

1  Only  so  much  of  the  case  as  relates  to  this  objection  is  given. 


ciiAP.  XX.]  cartwrigut's  case. 


867 


CARTWRIGHT'S   CASP:. 
Supreme  Judicial  Court  of  MAssAcmsErrs.     1873. 

[Reported  114  Mass.  230.] 

Gray,  C.  J.^  The  summary  power  to  commit  and  pmush  for  con- 
tempts  tendmg  to  obstruct  or  degiade  the  administnitioi.of  justic.-  is  i„he 
rent  in  Courts  of  Chancery  and  other  Supc-rior  Courts,  as  essential  to  the 
execution  of  their  powers  and  to  tlie  maintenance  of  their  autl.oritv  and 
is  part  of  the  law  of  the  land,  within  the  meaning  of  Magna  Charta  and  cf 
the  twelfth  article  of  our  Declaration  of  Rights.  4  H?  Com  2h1-"kh  • 
Acta  Cane.  209,  264,  321,  373,  642,  753,  7.'',.');  The  Kin-\,  Aimon' 
Wilmot,  243,  254;  Clarke's  Praxis,  tit.  02  ;  Mass.  Col!  Laws  (ed' 
1672),  36  ;  Anc.  Chart.  90 ;  Thwing  v.  Dennie,  Quincy,  338  ;  6  Dane 
Ab.  528  ;  United  States  v.  Hudson,  7  Cranch,  32,  34.  There  is  no 
class  of  cases  in  which  the  exercise  of  this  power  is  more  familiar  or 
more  necessary  than  in  the  case  of  attorneys  and  solicitors,  clerks, 
sheriffs,  and  other  officers  of  courts.  2  Hawk.  c.  22,  §§  4,  10,  11 .  30  • 
United  States  v.  Mann,  2  Brock.  9;  In  re  Pitman,  1  Curtis,  180  ; 
Yates  V.  Lansing,  9  .Johns.  395,  affirming  s.  c.  5  Johns.  282 ;  Chiles  v. 
Harrison,  1  Litt.  150.  The  appellant,  having  been  appointed  bv  this 
court,  sitting  in  equity,  the  receiver  of  an  insolvent  insurance  company, 
was  an  officer  and  representative  of  the  court,  and  his  custodv  of  the 
funds  thereby  committed  to  his  charge  was  the  custody  of  the  court. 
Davis  V.  Gray,  16  Wall.  203  ;    Hills  r.  Parker,  111  Mass.  508. 

An  application  for  an  attachment  for  contempt  is  to  be  made  and 
filed  in  the  original  cause;  after  the  attachment  has  issued,  the  pro- 
ceedings are  distinct  and  are  criminal  in  their  nature.  Folger  r.  Hoog- 
land,  5  Johns.  235 ;  ^x  parte  Kearney,  7  Wheat.  38 ;  Durant  v. 
Supervisors,  1  Woolworth,  377;  Winslow  v.  Na3'Son,  113  Mass.  411; 
McDermott  y.  Clary,  107  Mass.  501.  But  the  jurisdiction  and  power 
of  the  court  do  not  depend  upon  the  question  whether  the  ofTcnce 
might  or  might  not  be  punished  b}-  indictment.  Rex  v.  Ossulston,  2 
Stra.  1107;  s.  c.nom.  The  King  v.  Pierson,  Andr.  310;  Spalding  v. 
People,  7  Hill,  301  ;  s.  c.  10  Paige,  284;  4  How.  21  ;  State  r.  Wood- 
fin,  5  Ired.  199  ;  State  v.  Williams,  2  Speers,  26.  "  As  regards  the 
question  whether  a  contempt  has  or  has  not  been  committed,  it  docs  not 
depend  upon  the  intention  of  the  party,  but  upon  the  act  he  has  done." 
By  Taney,  C.  J.,  in  Wartman  v.  Wartman,  Taney,  302,  370.  In  a 
court  of  chancer}-,  at  least,  his  oath  is  not  conclusive  in  his  favor,  but 
may  be  contradicted  by  other  evidence.  Bac.  Ab.  Attachment.  B.  i 
Bl.  Com.  288;  The  King  v.  Vaughan,  2  Doug.  510;  p:mcry  r. 
Bowen,  5  L.  J.  (n.  s.)  Ch.  349. 

But  in  the  present  case  his  own  testimony  fails  to  clear  him  It 
appears  by  his  examination  upon  oath  that  at  the  time  of  his  api^inl- 

1  The  opinion  only  is  given. 


868  cartwright's  case.  [chap.  xx. 

ment  as  receiver  he  was  indebted  to  the  corporatiou  in  the  sum  of 
S1650.00,  and  that  he  afterwards  took  from  the  assets  of  the  corpora- 
tion in  the  hands  of  the  receivers,  and  applied  and  spent  for  his 
own  use,  without  any  order  or  authority  of  the  court,  the  sum  of 
§10,573.44  ;  that  ncarl}'  SOOOO  of  this  sum  was  so  taken  by  him  within 
two  or  three  months  of  his  appointment ;  that  no  entry  of  the  greater 
part  thereof  was  made  on  the  books  of  the  receivers  until  after  the 
Attornej'-General  had  filed  an  application  to  remove  him  from  office  for 
gross  negligence  and  malfeasance  in  his  official  duties,  and  that  no 
part  of  these  two  sums,  amounting  with  interest  at  six  per  cent,  to 
813,565.97,  had  ever  been  replaced.  The  appellant's  statement  that 
he  had  no  intention  to  do  wrong  is  irreconcilable  with  the  rest  of  his 
testimony,  and  with  his  admission  that  he  also  appropriated,  without 
the  knowledge  of  his  co-receivers,  S25,000  in  bonds  of  the  United 
States,  belonging  to  the  corporation,  and  did  not  return  them  until 
after  that  misappropriation  had  been  discovered  by  the  Attorney-Gen- 
eral and  a  demand  had  been  made  upon  him  for  them. 

The  taking  and  spending  by  this  receiver  for  his  own  use,  whether 
with  or  without  the  concurrence  or  advice  of  the  other  receivers,  of 
more  than  S10,000  of  the  funds  in  his  possession  as  an  officer  and 
representative  of  the  court,  was  a  gross  breach  of  trust,  tending  to 
bring  reproach,  disgrace,  and  distrust  upon  the  administration  of  jus- 
tice, and  was  a  contempt  of  the  authority  of  the  court,  and  punishable, 
according  to  the  law  of  the  land  and  the  established  practice  of  all 
courts  of  similar  jurisdiction,  by  fine  or  imprisonment  at  the  discretion 
of  the  court.  The  object  of  an  attachment  and  commitment  for  a  gross 
contempt  of  this  nature  being  not  merely  to  compel  restoration  of  the 
money  illegally  taken,  but  to  punish  the  oflfender,  the  discretion  of  the 
court  cannot  be  controlled  by  the  fact  of  his  not  having  the  present 
means  of  repaying  what  he  has  abstracted. 

The  appellant  had  full  and  sufficient  notice  of  the  nature  of  the  con- 
tempt with  which  he  was  charged,  by  the  terms  of  the  order  to  show 
cause  why  an  attachment  should  not  issue  against  him,  and  b}'  the 
affidavit  of  one  of  the  receivers  upon  which  that  order  was  founded. 
He  was  fully  heard  in  person  and  by  counsel  in  his  defence.  And  his 
offence  is  clearly  set  forth  in  the  decree  adjudging  him  guilty  of  con- 
tempt  and  in  the  warrant  of  commitment  issued  thereon. 

It  is  unnecessary  to  consider  how  far  that  decree  is  the  subject  of 
appeal ;  because,  for  the  reasons  above  stated,  we  are  of  opinion  that 
there  is  no  error  of  law  in  the  proceedings,  and  that  upon  the  facts  of 
the  case  the  discretion  of  the  court  was  wisely  and  justl}^  exercised  by 
sentencing  him  to  imprisonment  for  six  months  unless  sooner  dis- 
charged by  further  order  of  the  court. 

Decree  affirmed. 


CHAP.  XX.]  EX   PAKTE  TEUiiV. 


869 


Ex  PARTK  TERRY. 
Supreme  Court  ok  the  United  States.     1888. 

[Reported  128  U.  S.  289] 

Mr.  Justice  Harlan  delivered  the  opinion  <jf  tlic  court. 

This  is  an  original  application  to  this  court  for  a  writ  of  hibta* 
corpus.  The  petitioner,  David  S.  Terry,  alleges  that  he  is  unhiwfullv 
imprisoned,  under  an  order  of  the  Circuit  Court  of  tiie  I'nit.d  Stales 
for  the  Northern  District  of  California,  in  the  jail  of  Ahuiicda  County 
in  that  state. 

That  order  is  made  a  part  of  his  application,  and  is  as  follows  :  — 

''In  the  Circuit  Court  of  the  Unittd  States  of  America  fur  ih^. 
Northern  District  of  California. 

"  In  the  Matter  of  Contempt  of  David  S.  Terry.     In  open  court. 

"Whereas  on  this  3d  day  of  September,  1S8H,  in  open  court,  and  in 
the  presence  of  the  judges  thereof,  to  wit,  Hon.  Stephen  J.  Field,  Cir- 
cuit Justice,  presiding;  lion.  Lorenzo  Sawyer,  Circuit  Judge,  and  Hon. 
George  M.  Sabin,  District  Judge,  during  the  session  of  said  court,  and 
while  said  court  was  engaged  in  its  regular  business,  liearing  and 
determining  causes  pending  before  it,  one  Sarah  Althea  Terry  was 
guilty  of  uiisbehavior  in  the  presence  and  hearing  of  saiil  court; 

"  And  whereas,  said  court  thereupon  duly  and  lawfully  ordered  the 
United  States  marshal,  J.  C.  Franks,  who  was  then  present,  to  remove 
the  said  Sarah  Althea  Terrj'  from  the  court-room ; 

"  And  whereas  the  said  United  States  marshal  then  and  there 
attempted  to  enforce  said  order,  and  then  and  there  was  resisted  by 
one  David  S.  Terry,  an  attorney  of  this  court,  who,  while  the  said 
marshal  was  attempting  to  execute  said  order  in  the  presence  of  the 
court,  assaulted  the  said  United  States  marshal,  and  then  and  there 
beat  him,  the  said  marshal,  and  then  and  there  wrongfully  and  unlaw- 
fully assaulted  said  marshal  with  a  deadly  weapon,  with  intent  to 
obstruct  the  administration  of  justice,  and  to  resist  such  United  Siatoa 
marshal  and  the  execution  of  the  said  order ; 

"And  whereas  the  said  David  S.  Terry  was  guilty  of  a  contempt  of 
this  court  b}'  misbehavior  in  its  presence  and  by  a  forcible  resistance 
in  the  presence  of  the  court  to  a  lawful  order  thereof,  in  the  manner 
aforesaid : 

"  Now,  therefore,  be  it  ordered  and  adjudged  by  this  court.  That 
the  said  David  S.  Terry,  by  reason  of  said  acts,  was.  and  is,  guilty  ff 
contempt  of  the  authority  of  this  court,  conmiittcd  in  its  presence  on 
this  3d  day  of  September,  1888  ; 

"  And  it  is  further  ordered,  That  the  said  David  S.  Terry  l>e  punished 
for  said  contempt  by  imprisonment  for  the  term  of  six  mouUia ; 


870 


EX  PARTE  TERRy. 


[chap.  XX. 


"  And  it  is  further  ordered,  That  this  judgment  be  executed  by 
imprisonment  of  the  said  David  S.  Terry  in  the  county  jail  of  the 
county  of  Alameda,  in  the  State  of  California,  until  the  further  order 
of  this  court,  but  not  to  exceed  said  term  of  six  months  ; 

"  And  it  is  further  ordered,  That  a  certified  copy  of  this  order,  under 
the  seal  of  the  court,  be  process  and  warrant  for  executing  this  order." 

The  petition  alleges  that  "  said  order  was  made  by  said  court  in  the 
absence  of  your  petitioner,  and  without  his  having  any  notice  of  the 
intention  of  said  court  to  take  any  proceeding  whatever  in  relation  to 
the  matters  referred  to  in  said  order,  and  without  giving  your  petitioner 
any  opportunity  whatever  of  being  heard  in  defence  of  the  charges 
therein  made  against  him." 

The  petition  proceeds  :  — 

"  And  your  petitioner  further  showeth  that  on  the  12th  day  of  Sep- 
tember, 1888,  he  addressed  to  the  said  Circuit  Court  a  petition,  duly 
verified  by  his  oath,  in  the  words  and  figures  following,  to  wit : 

'  In  the  Circuit  Court  of  the  United  States,  Ninth  Circuit,  Northern 
District  of  California. 

'  In  the  Matter  of  Contempt  of  David  S.  Terry. 
'  To  the  Honorable  Circuit  Court  aforesaid  : 
'  The  petition  of  David  S.  Terry  respectfully  represents  : 
'  That  in  all  the  matters  and  transactions  occurring  in  the  said  court 
on  the  3d  day  of  September,  inst.,  upon  which  the  order  in  this  matter 
was  based,  your  petitioner  did  not  intend  to  say  or  do  anything  disre- 
spectful to  said  court  or  the  judges  thereof,  or  to  any  one  of  them  ;  that 
when  petitioner's  wife,  the  said  Sarah  Althea  Terry,  first  arose  from 
her  seat,  and  before  she  uttered  a  word,  your  petitioner  used  every 
effort  in  his  power  to  cause  her  to  resume  her  seat  and  remain  quiet ; 
and  he  did  nothing  to  encourage  her  in  her  acts  of  indiscretion  ;  when 
this  court  made  the  order  that  petitioner's  wife  be  removed  from  the 
court-room,  your  petitioner  arose  from  his  seat  with  the  purpose  and 
intention  of  himself  removing  her  from  the  court-room,  quietly  and 
peaceably,  and  had  no  intention  or  design  of  obstructing  or  preventing 
the  execution  of  the  said  order  of  the  court ;  that  he  never  struck  or 
ofl'ered  to  strike  the  United  States  marshal  until  the  said  marshal  had 
assaulted  himself,  and  had  in  his  presence  violently,  and,  as  he  beUeved, 
unnecessarilj',  assaulted  petitioner's  wife. 

'Your  petitioner  most  solemnly  avers  that  he  neither  drew  or  at- 
tempted to  draw  any  deadly  weapon  of  any  kind  whatever  in  said 
court-room,  and  that  he  did  not  assault  or  attempt  to  assault  the  United 
States  marshal  with  any  deadly  weapon  in  said  court-room  or  elsewhere. 
'  And  in  this  connection  he  respectfully  represents  that  after  he  had 
left  said  coiu't-room  he  heard  loud  talking  in  one  of  the  rooms  of  the 
United  States  marshal,  and  among  the  voices  proceeding  therefrom  he 
recognized  that  of  his  wife,  and  he  thereupon  attempted  to  force  his 
way  into  said  room  through  the  main  office  of  the  United  States  mar- 


CHAP.  XX.]  EX   PARTE  TERRY.  37 j 

shal ;  the  door  of  this  room  was  blocked  witli  siicl.  a  crowd  of  luei)  tlmt 
the  door  could  not  be  closed;  that  your  i)etiti„ner  tbc-n  for  tbo  first 
time  drew  from  inside  his  vest  a  small  sheath  knife,  at  the  s-iuk.  lime 
saying  to  those  standing  in  his  way  in  said  door,  that  he  did  not  want 
to  hurt  any  one  ;  that  all  he  wanted  was  to  get  in  the  room  where  his 
wife  was  ;  the  crowd  then  parted,  and  your  i)ftitioner  enten-d  the  door- 
way, and  there  saw  a  United  States  deputy-marshal  with  a  revolver  in 
his  hand  pointed  to  the  ceiling  of  the  room  ;  some  one  then  said  •'  I^-t 
him  in,  if  he  will  give  up  his  knife,"  and  your  petitioner  imnu'diately 
released  hold  of  the  knife  to  some  one  standing  by. 

'  In  none  of  these  transactions  did  your  petitioner  have  the  sli.'htest 
idea  of  showing  any  disrespect  to  this  honorable  court  or  any  of  the 
judges  thereof. 

'  That  he  lost  his  temper,  he  respectfully  submits,  was  a  natural  mu- 
sequence  of  himself  being  assaulted  when  he  was  making  an  honest 
effort  to  peacefully  and  quietly  enforce  the  order  of  the  court  so  as  to 
avoid  a  scandalous  scene,  and  of  seeing  his  wife  so  unnecessarily 
assaulted  in  his  presence. 

'  Wherefore  your  petitioner  respectfully  requests  that  this  honorable 
court  may,  in  the  light  of  the  facts  herein  stated,  revoke  the  order  made 
herein  committing  him  to  prison  for  six  months. 

'  And  your  petitioner  will  ever  pray,  etc. 

'Dated  Sept.  12,  1888.'  " 

The  petitioner  states  that  on  the  17th  of  September,  1888,  the  Cir- 
cuit Court  "  declined  and  refused  to  grant  to  your  petitioner  the  relief 
prayed  for  or  an^'  other  relief." 

He  also  insists,  in  his  petition,  that  the  "  Circuit  Court  had  no  juris- 
diction of  his  person  at  the  time  it  made  the  order  hereinbefore  set 
forth,  and  possessed  no  lawful  power  to  make  said  order,  and  that  he 
was  entitled  to  be  relieved  from  his  said  imprisonment  upon  the  filing 
of  the  petition  aforesaid,  and  that  said  order  of  said  court  is  otherwise 
illegal  and  unwarranted  b}'  the  law  of  the  land." 

That  he  may  be  relieved  of  said  detention  and  imprisonment,  he 
l)ra3-s  that  he  may  be  forthwith  brought  before  this  court,  upon  writ  of 
habeas  corpus,  to  do,  submit  to  and  receive  what  the  law  may  require. 

The  above  presents  the  entire  case  made  by  the  application  before 
us. 

There  can  be  no  dispute  either  as  to  the  power  or  duty  of  this  court 
in  cases  of  this  character,  its  power  to  issue  a  writ  of  /iabeas  corjms 
for  the  purpose  of  inquiring  into  the  cause  of  the  restraint  of  the  lilierty 
of  the  person  in  whose  behalf  the  writ  is  asked,  is  expressly  conferred 
by  statute,  and  extends  to  the  cases,  among  others,  of  prisoners  in  jail 
under  or  by  color  of  the  authority  of  the  United  States,  and  of  persons 
who  are  in  custody  in  violation  of  the  Constitution  or  laws  of  the 
United  States.  Rev.  Stat.  §§  751,  752,  753.  Its  gonernl  duty  in  such 
cases  is  also  prescribed  by  statute.  Upon  complaint  in  writing,  signed 
by,  and  verified  by  the  oath  of  the  person  for  whose  relief  it  is  intcndctl, 


872  EX   PARTE   TERRY.  [CHAP.  XX. 

setting  forth  the  facts  concerning  the  detention  of  tlie  party  restrained, 
in  whose  custody  he  is  detained,  and  by  virtue  of  what  claim  or  auihor- 
it}',  if  known,  it  is  the  duty  of  the  court  to  "  forthwitli  award  a  writ  of 
habeas  corpus,  unless  it  appears  from  the  petition  itself  that  the  party 
is  not  entitled  thereto."  Rev.  Stat.  §§  754,  755.  The  writ  need  not, 
therefore,  be  awarded  if  it  appear  upon  the  showing  made  by  the  peti- 
tioner, that  if  brought  into  court,  and  the  cause  of  his  commitment 
inquired  into,  he  would  be  remanded  to  prison.  Ex  parte  Kearney,  7 
Wheat.  38,  45  ;  Ex  parte  Watkins,  3  Pet.  193,  201 ;  Ex  parte  Milligan, 
4  Wall.  2,  11. 

It  is  proper  in  this  connection  to  say  that  since  the  passage  of  the 
act  of  March  3,  1885,  c.  353,  23  Stat.  437,  amending  §  764  of  the 
Revised  Statutes  so  as  to  give  this  court  jurisdiction,  upon  appeal,  to 
review  the  final  decisions  of  the  Circuit  Courts  of  the  United  States  in 
cases  of  habeas  corpus,  when  the  petitioner  alleges  that  he  is  restrained 
of  his  liberty  in  violation  of  the  Constitution  or  laws  of  the  United 
States,  the  right  to  the  writ,  upon  original  application  to  this  court,  is 
not,  in  every  case,  an  absolute  one.  In  Wales  v.  Whitney,  114  U.  S. 
564,  it  appears  that  a  direct  application  to  this  court  for  the  writ,  after 
a  decision  adverse  to  the  petitioner  in  the  Supreme  Court  of  the  District 
of  Columbia,  was  abandoned  on  the  suggestion  that  he  could  bring  that 
decision  to  this  court  for  review  under  the  Act  of  18S5;  and  it  was 
brought  here  under  that  statute.  In  Ex  p>art6  Royall,  117  U.  S.  241, 
250,  upon  appeal  from  a  decision  of  a  Circuit  Court  of  the  United  States 
refusing  to  award  the  writ  to  one  alleging  that  he  was  restrained  of  his 
liberty  in  violation  of  the  Constitution  of  the  United  States  by  an  order 
of  a  State  court,  in  which  he  stood  indicted  for  an  alleged  offence  against 
the  laws  of  such  State,  it  was  held  that  while  the  Circuit  Court  had  power 
to  grant  the  writ  and  discharge  the  accused  in  advance  of  his  trial  under 
the  indictment,  it  was  not  bound  to  exercise  that  power  immediately 
upon  application  being  made  for  the  writ,  but  could  await  the  result  of 
the  trial,  and,  in  its  discretion,  as  the  special  circumstances  of  the  case 
might  require,  put  the  petitioner  to  his  writ  of  error  from  the  highest 
court  of  the  State.  In  Sawyer's  Case,  124  U.  S.  200,  this  court  enter- 
tained an  original  application  for  a  writ  of  habeas  corpus  without 
requiring  the  petitioner  to  apply,  in  the  first  instance,  to  the  proper 
Circuit  Court ;  but,  in  that  case,  as  in  this,  the  application  proceeded 
upon  the  ground  that  the  Circuit  Court  itself  had  made  the  order  by 
which  he  was  alleged  to  have  been  deprived  of  his  libert}'  in  violation 
of  the  Constitution  of  the  United  States. 

Nor  can  there  be  n\\y  dispute  as  to  the  power  of  a  Circuit  Court  of 
the  United  States  to  punish  contempts  of  its  authority'.  In  United 
States  V.  Hudson,  7  Cranch,  32,  it  was  held  that  the  courts  of  the 
United  States,  from  the  very  nature  of  their  institution,  possess  the 
power  to  fine  for  contempt,  imprison  for  contumacy,  enforce  the  observ- 
ance of  order,  etc.  In  Anderson  v.  Dunn,  6  Wheat.  204,  227,  it  was 
said  that  "  courts  of  justice  are  universally  acknowledged  to  be  vested, 


CHAP.  XX.]  EX   PARTE   TEUkY. 


873 


co- 


by  their  very  creation,  with  power  to  impose  siluiice,  resi)cct  and  de_- 
rum  iu  their  presence,  and  submission  to  their  lawful  mamlalc:*."  .So 
in  Ex  parte  Robinson,  19  Wall.  6Uo,  oIU:  ''The  power  to  punish  fur 
contempts  is  inherent  in  all  courts;  its  existence  is  e».sL-niijil  to  the 
preservation  of  order  injudicial  i)roci'ediiios,  and  to  the  euforcemeut  of 
the  judgments,  orders  antl  writs  of  the. courts,  and  conseciuc-nlly  U>  the 
line  administration  of  justice.  The  moment  the  courts  of  iliu  United 
States  were  called  into  existence  and  invested  with  jurisdiction  over 
any  subject,  they  became  possessed  of  this  power."  Ex  parte  IJollman, 
4  Cranch,  75,  94;  Story,  Constitution,  §  1774;  JJac.  Ab.  Courts,  k' 
And  such  is  the  recognized  doctrine  in  reference  to  the  powers  of  the 
courts  of  the  several  States.  "The  sunnnary  power  to  commit  and 
punish  for  contempts  tending  to  obstruct  or  degrade  the  adniinir,iraii<jn 
of  justice,"  the  Supreme  Judicial  Court  of  Massachusetts  well  said,  in 
Cartwright's  Case,  114  Mass.  230,  238,  "is  inherent  in  courts  of 
Chancery  and  other  Superior  Courts,  as  essential  to  the  execution  of 
their  powers  and  to  the  maintenance  of  their  authority,  and  is  part 
of  the  law  of  the  land,  within  the  meaning  of  ^lagna  Cliarta  and  of  the 
twelfth  article  of  our  Declaration  of  Kiglits."  The  Declaration  of 
Rights  here  referred  to  was  that  which  foiined  part  of  the  constitution 
of  Massachusetts,  and  contained  the  prohibition,  inserted  in  most  of 
the  American  constitutions,  against  depriving  any  person  of  life,  lil>erlv, 
or  estate,  except  by  the  judgment  of  his  peers,  or  the  law  of  the  land. 
So  in  Cooper's  Case,  32  Vermont,  253,  257:  '-The  power  to  punish 
for  contempt  is  inherent  in  the  nature  and  constitution  of  a  court  It 
is  a  power  not  derived  from  any  statute,  but  arising  from  necessity ; 
implied,  because  it  is  necessary  to  the  exercise  of  all  other  powers." 
AYithout  such  power,  it  was  observed  in  Easton  v.  State,  39  Alaljama. 
551,  the  administration  of  the  law  would  be  in  continual  danger  of 
being  thwarted  by  the  lawless.  To  the  same  elfect  are  Watson  c.  Wil- 
liams, 36  Mississippi,  331,  344;  Johnston  v.  Commonwealth,  1  liibl), 
598;  Clark  v.  People,  Breese  (1  Illinois),  2G6 ;  Commonwealth  r. 
Dandridge,  2  Va.  Cases,  408;  Ex  parte  Hamilton  &  Smith,  51  Ala- 
bama, 66,  68;  Redman  v.  State,  28  Indiana,  205,  212;  reo[)le  /•. 
Turner,  1  California,  152,  153;  State  v.  Morrill,  IG  Arkansas,  384, 
388  ;  and  numerous  cases  cited  in  note  to  Clark  v.  People,  iihi  supra, 
in  12  Am.  Dec.  178.  See  also  Queen  v.  Lefroy,  L.  R.  8  Q.  B.  134. 
But  this  power,  so  far  as  the  Circuit  Courts  of  the  United  States  arc 
concerned,  is  not  simply  incidental  to  their  general  power  to  exercise 
judicial  functions  ;  it  is  expressly  recognized,  and  the  cases  in  which 
it  may  be  exercised  are  defined,  by  acts  of  Congress.  They  have 
power,  by  statute,  "  to  punish,  by  fine  or  imprisonment,  at  the  discre- 
tion of  the  court,  contempts  of  their  authority  :  Provided,  That  such 
power  to  punish  contempts  shall  not  be  construed  to  extend  to  any 
cases  except  the  misbehavior  of  any  person  in  their  iircsence,  or  so 
near  thereto  as  to  obstruct  the  administration  of  justice,  the  misln-havior 
of  any  of  the  officers  of  said  courts  in  their  ollicial  transactions,  aud 


874  EX  PAETE   TERRY.  [CHAP.  XX. 

the  disobedience  or  resistance  b}'  an}'  such  officer,  or  by  any  part}', 
juror,  witness,  or  other  person,  to  any  lawful  writ,  process,  order,  rule, 
decree  or  command  of  the  said  courts."  Rev.  Stat.  §  725  ;  1  Stat.  83  ; 
4  Stat.  487. 

AVith  these  observations  as  to  the  power  and  duty  of  the  courts  of 
the  United  States,  when  applied  to  for  writs  of  habeas  covims,  we  pro- 
ceed to  the  consideration  of  the  general  question  as  to  whether  the 
petition  in  this  case  shows  that  the  prisoner  is  or  is  not  entitled  to  the 
writ.  The  contention  of  his  counsel  is,  that  the  Circuit  Court  failed  to 
take  such  steps  as  were  necessary  to  give  jurisdiction  of  the  person  of 
the  prisoner  at  the  time  the  order  was  made  committing  him  to  jail  for 
contempt;  and,  therefore,  that  the  order  was  illegal,  and  the  writ 
should  be  awarded.  If  this  position  is  sound,  the  conclusion  stated 
would  necessarily  follow ;  for  while  the  writ  may  not  be  used  to  correct 
mere  errors  or  irregularities,  however  flagrant,  committed  within  the 
sphere  of  the  authority  of  the  court,  it  is  an  appropriate  writ  to  obtain 
the  discharge  of  one  imprisoned  under  the  order  of  a  court  of  the  United 
States  which  does  not  possess  jurisdiction  of  the  person  or  of  the  sub- 
ject-matter. Ex  parte  Lange,  18  Wall.  163;  Ex  parte  Parks,  93  U. 
S.  18  ;  Ex  parte  Siebold,  100  U.  S.  371  ;  Ex  parte  Rowland,  104  U.  S. 
604;  Ex  parte  Curtis,  106  U.  S.  371  ;  In  re  Ayers,  123  U.  S.  443, 
485  ;  l7i  re  Sawyer,  124  U.  S.  200,  221  ;  Harvey  v.  Tyler,  2  Wall.  328, 
345  ;  Ex  parte  Fisk,  113  U.  S.  713,  718.  In  this  last  case  it  was  said 
that  when  "  a  court  of  the  United  States  undertakes,  by  its  process  of 
contempt,  to  punish  a  man  for  refusing  to  comply  with  an  order  which 
that  court  had  no  authorit}'  to  make,  the  order  itself,  being  without 
jurisdiction,  is  void,  and  the  order  punishing  for  the  contempt  is  equally 
void.  It  is  well  settled  now,  in  the  jurisprudence  of  this  court,  that 
when  the  proceeding  for  contempt  in  such  a  case  results  in  imprison- 
ment, this  court  will,  by  its  writ  of  habeas  corpus^  discharge  the 
prisoner."  A  judgment  which  lies  without  the  jurisdiction  of  a  court, 
even  one  of  superior  jurisdiction  and  general  authority',  is,  upon  reason 
and  authority,  a  nullity. 

This  question,  it  must  be  here  observed,  does  not  involve  an  inquiry 
into  the  truth  of  the  specific  facts  recited  in  the  order  of  commitment, 
as  constituting  the  contempt.  As  the  writ  of  habeas  corpus  does  not 
perform  the  office  of  a  writ  of  error  or  an  appeal,  these  facts  cannot  be 
re-examined  or  reviewed  in  this  collateral  proceeding.  The}'  present  a 
case  which,  so  far  as  the  subject-matter  is  concerned,  was  manifestly 
within  the  jurisdiction  of  the  Circuit  Court.  Notwithstanding  the  state- 
ments made  in  the  petition  addressed  to  the  Circuit  Court  on  the  12th 
of  September,  as  to  what  the  petitioner  did,  and  as  to  what  he  did  not 
do,  on  the  occasion  referred  to  in  the  order  of  commitment,  it  must  be 
taken  as  true,  upon  the  present  application,  and  would  be  taken  as 
true,  upon  a  return  to  the  writ,  if  one  were  awarded,  that,  on  the  3d  of 
September,  1888,  Mrs.  Terry  was  guilty  of  misbehavior  in  the  presence 
of  the  judges  of  the  Circuit  Court,  while  they  were  engaged  in  the 


CHAP.  XX.]  EX  PARTE  TERRY.  875 

hearing  and  determination  of  causes  pending  before  it;  tliat  ilu-  court 
thereupon  ordered  the  marshal  to  remove  her  from  the  courUro<iiij ;  Uiai 
the  petitioner,  an  attorney,  and,  therefore,  an  olllcer  of  thr  am'n,  re- 
sisted the  enforcement  of  the  order  by  beating  the  m.-irshal,  and'  by 
assaulting  him  with  a  deadly  weapon,  with  intent  to  obstruct  Uie 
administration  of  justice  and  the  execution  of  said  order.  It  nuisl  alw) 
be  taken  as  true,  upon  the  present  application,  that  what  the  iK«tilioiier 
characterizes  as  self-defence  against  an  assault  of  the  marshal,  but 
which  the  Circuit  Court  in  its  order  of  commitment  express! v  nmlji, 
upon  its  personal  view  of  the  facts,  was  violence  and  mibccjudiict  \i\ton 
his  part,  occurred  in  its  immediate  presence ;  for,  if  it  were  coiniM-ltMit 
in  this  proceeding  for  the  petitioner  to  contradict  that  fact,  this  lm»  not 
been  done.  While  in  his  petition  to  this  court  he  disputes  the  juriwlic- 
tion  of  the  Circuit  Court  of  his  person  at  the  time  he  was  iniprisone<I, 
his  petition  addressed  to  that  court  on  the  12th  of  Septemlier,  and 
made  part  of  the  present  application,  makes  no  question  as  to  the 
alleged  contempt  having  been  committed  in  the  presence  of  the  Circuit 
Court,  and  only  puts  in  issue  the  principal  facts  recited  in  the  order  of 
commitment  as  constituting  the  contempt  for  which  lie  was  punishe<l. 
Those  facts  necessarily  entered  into  the  inquiry  by  the  Circuit  Court  as 
to  whether  the  prisoner  was  or  was  not  guilty  of  contempt,  and  this 
court  cannot,  in  this  proceeding,  in  virtue  of  any  power  conferred  ujion 
it  by  existing  legislation,  go  behind  the  determination  of  them  by  that 
court.  It  can  deal  only  with  such  defects  in  the  proceedings  as  render 
them,  not  simply  erroneous  or  irregular,  but  absolutely  void.  ICr ]Hnte 
Robinson,  19  Wall.  505,  511 ;  £Jx  imrte  Kearney,  7  Wheat.  38,  43. 

What,  then,  are  the  grounds  upon  which  the  petitioner  claims  that 
the  Circuit  Court  was  without  jurisdiction  to  make  the  order  committing 
him  to  jail?  They  are  :  1.  That  the  order  was  made  in  his  absence  ; 
2.  That  it  was  made  without  his  having  had  any  previous  notice  of  the 
intention  of  the  court  to  take  any  steps  whatever  in  relation  to  the  mat- 
ters referred  to  in  the  order ;  3.  That  it  was  made  without  giving  him 
any  opportunity  of  being  first  heard  in  defence  of  the  charges  therein 
made  against  him. 

The  second  and  third  of  these  grounds  may  be  dismissed  as  immate- 
rial in  any  inquiry  this  court  is  at  liberty,  upon  this  original  application, 
to  make.  For,  upon  the  facts  recited  in  the  order  of  Scptcmljor  3. 
showing  a  clear  case  of  contempt  committed  in  the  face  of  the  Circuit 
Court,  which  tended  to  destroy  its  authority,  and.  by  violent  methods, 
to  embarrass  and  obstruct  its  business,  the  petitioner  was  not  entitled, 
of  absolute  right,  either  to  a  regular  trial  of  the  question  of  contomi)t, 
or  to  notice  by  rule  of  the  court's  intention  to  proceed  against  him.  or 
to  opportunity  to  make  formal  answer  to  the  charges  contained  in  the 
order  of  commitment.  It  is  undoubtedly  a  general  rule  in  all  actions, 
whether  prosecuted  by  private  parties,  or  by  the  governmont.  that  U, 
in  civil  and  criminal  cases,  that  "  a  sentence  of  a  court  pn.nouncod 
against  a  party  without  hearing  him,  or  giving  him  an  opiwrtunlty  lo 


875  i:X  PARTE  TERRY.  [CHAP.  XX. 

be  heard,  is  not  a  judicial  determination  of  his  rights,  and  is  not  en- 
titled  to  respect  in  any  other  tribunal."  Windsor  v.  McVeigh,  93  U.  S. 
274,  277.  But  there  is  another  rule,  of  almost  immemorial  antiquity, 
and  universally  acknowledged,  which  is  equally  vital  to  personal  liberty 
and  to  the  preservation  of  oi'ganized  society,  because  upon  its  recogni- 
tion and  enforcement  depend  the  existence  and  authority  of  the  tribu- 
nals established  to  protect  the  rights  of  the  citizen,  whether  of  life, 
liberty,  or  property,  and  whether  assailed  by  the  illegal  acts  of  the 
government  or  by  the  lawlessness  or  violence  of  individuals.  It  has 
relation  to  the  class  of  contempts  which,  being  committed  in  the  face 
of  a  court,  imply  a  purpose  to  destroy  or  impair  its  authority,  to 
obstruct  the  transaction  of  its  business,  or  to  insult  or  intimidate  those 
charged  with  the  duty  of  administering  the  law.  Blackstone  thus  states 
the  rule  :  "  If  the  contempt  be  committed  in  the  face  of  the  court,  the 
offender  may  be  instantly  apprehended  and  imprisoned,  at  the  discre- 
tion of  the  judges,  without  any  further  proof  or  examination.  But  in 
matters  that  arise  at  a  distance,  and  of  which  the  court  cannot  have  so 
perfect  a  knowledge,  unless  by  the  confession  of  the  party  or  the  testi- 
mony of  others,  if  the  judges  upon  affidavit  see  sufficient  ground  to  sus- 
pect that  a  contempt  has  been  committed,  they  either  make  a  rule  on 
the  suspected  party  to  show  cause  why  an  attachment  should  not  issue 
against  him  ;  or,  in  very  flagrant  instances  of  contempt,  the  attachment 
issues  in  the  Grst  instance,  as  it  also  does  if  no  sufficient  cause  be 
shown  to  discharge,  and  thereupon  the  court  confirms  and  makes  abso- 
lute the  original  rule."  4  Bl.  Com.  286.  In  Bacon's  Abridgment,  title 
Courts,  E,  it  is  laid  down  that  "  every  court  of  record,  as  incident  to  it, 
may  enjoin  the  people  to  keep  silence,  under  a  pain,  and  impose  rea- 
sonable fines,  not  only  on  such  as  shall  be  convicted  before  them  of 
any  crime  on  a  formal  prosecution,  but  also  on  all  such  as  shall  be 
guilty  of  any  contempt  in  the  face  of  the  court,  as  by  giving  opprobri- 
ous language  to  the  judge,  or  obstinately  refusing  to  do  their  duty  as 
officers  of  the  court,  and  immediately  order  them  into  custody."  It  is 
utterl}'  impossible,  said  Abbott,  C.  J.,  in  Rex  v.  Davidson,  4  B.  &  Aid. 
329,  333,  "  that  the  law  of  the  land  can  be  properl}'  administered  if 
those  who  are  charged  with  the  duty  of  administering  it  have  not  power 
to  prevent  instances  of  indecorum  from  occurring  in  their  own  presence. 
That  power  has  been  vested  in  the  judges,  not  for  their  personal  pro- 
tection, but  for  that  of  the  public.  And  a  judge  will  depart  from  his 
bounden  duty  if  he  forbears  to  use  it  when  occasions  arise  which  call 
for  its  exercise." 

To  the  same  effect  are  the  adjudications  b}'  the  courts  of  this  coun- 
try. In  State  v.  Woodfin,  5  Iredell's  Law,  199,  where  a  person  was 
fined  for  a  contempt  committed  in  the  presence  of  the  court,  it  was 
said :  "  The  power  to  commit  or  fine  for  contempt  is  essential  to  the 
existence  of  every  court.  Business  cannot  be  conducted  unless  the 
court  can  suppress  disturbances,  and  the  only  means  of  doing  that  is  by 
immediate  punishment.     A  breach  of  the  peace  in  facie  curicB  is  a 


I 


CHAP.  XX.]  EX    PARTE   TEKRY.  g^- 

direct  disturbance  and  a  palpable  contempt  of  the  uutlioritv  of  tl  o 
court  It  is  a  case  that  does  not  ad.nit  of  delay,  an.l  tiu-  court 
would  be  w,thou  dignity  that  did  not  punish  it  ..rouipHy  and  witho. 
tnaL  Necessarily  there  can  be  no  inquiry  de  noro  in  another  court,  n 
to  the  truth  of  the  fact.  There  is  no  mode  provi.k-d  for  conduc  i...^ 
such  an  inquny  1  here  is  no  prosecution,  no  plea,  nor  issue  u,>on 
which  there  can  be  a  trial."  So  in  Whittem  r.  State  .3r,  Indiunn  31 1 
"When  the  contempt  is  committed  in  the  presence  of  the  court '  nn-l 
the  court  acts  ui)on  view  and  without  trial  au.l  indicts  the  punishment 
there  will  be  no  charge,  no  plea,  no  issue  and  no  trial ;  and  the  n-oonl 
that  shows  the  punishment  will  also  show  the  offence,  and  the  fact  th-.t 
the  court  had  found  the  party  guilty  of  the  contempt;  on  api.o-il  to  thih 
court  any  fact  found  by  the  court  below  would  bo  t^ikcn  as  true  and 
every  intendment  would  be  made  in  favor  of  the  action  of  the  co'urt  " 
Again,  in  ^x  parte  Wright,  G5  Indiana,  .50-1,  .508,  the  court  aftor 
observing  that  a  direct  contempt  is  an  open  insult  in  the  face  of  the 
court  to  the  persons  of  the  judges  while  presiding,  or  a  resistance  to 
its  powers  in  their  presence,  said  :  "  For  a  direct  contcmi)t  the  offender 
may  be  punished  instantly  by  arrest  and  fine  or  imprisonment,  upon  no 
further  proof  or  examiuation  than  what  is  known  to  tlic  judges  by  their 
senses  of  seeing,  hearing,  etc."  4  Stephen  Com.  Bk.  6,  c.^lo  ;  Tidd's 
Practice,  9th  ed.  London,  1828,  479-480  ;  Bx parte  Hamilton  &  Smith, 
51  Alabama,  66,  68  ;  People  v.  Turner,  1  California,  152,  1.5.5. 

It  is  true,  as  counsel  suggest,  that  the  power  which  the  court  has  of 
instantly  punishing,  without  further  proof  or  examination,  contempts 
committed  in  its  presence,  is  one  that  may  be  abused  and  may  some- 
times be  exercised  hastily  or  arbitrarily.  But  that  is  not  an  argument 
to  disprove  either  its  existence,  or  the  necessity  of  its  being  lodged  in 
the  courts.  That  power  cannot  be  denied  them  without  inviting  or 
causing  such  obstruction  to  the  orderly  and  impartial  administration  of 
justice  as  would  endanger  the  rights  and  safety  of  the  entire  connnun- 
ity.  What  was  said  in  ^x  'parte  Kearney,  7  Wheat.  3H,  45,  may  be 
here  repeated :  "  Wherever  power  is  lodged  it  may  be  abused.  But 
this  forms  no  solid  objection  against  its  exercise.  Confidence  must  lie 
reposed  somewhere ;  and  if  there  should  be  an  abuse,  it  will  be  a  pub- 
lic grievance,  for  which  a  remedy  ma}-  be  applied  by  the  legislature, 
and  is  not  to  be  devised  bj-  courts  of  justice." 

It  results  from  what  has  been  said  that  it  was  competent  for  the  Cir- 
cuit Court,  immediately  upon  the  commission,  in  its  presence,  of  the 
contempt  recited  in  the  order  of  September  3,  to  proceed  upon  its  own 
knowledge  of  the  facts,  and  punish  the  offiMider,  without  Anther  pixx)f, 
and  without  issue  or  trial  in  any  form.  It  was  not  bound  to  liear  any 
explanation  of  his  motives,  if  it  was  satisfied,  and  we  must  conclusively 
presume,  from  the  record  before  us,  that  it  was  satisfied,  from  wh.nt 
occurred  under  its  own  e\-e  and  within  its  hearing,  that  the  ends  of  jus- 
tice demanded  immediate  action,  and  that  no  explanation  could  mitip.ntc 
his  offence  or  disprove  the  fact  that  he  had  committed  such  contempt 


878  EX   PARTE   TERRY.  [CHAP.  XX. 

of  its  authority  and  dignity  as  deserved  instant  punishment.  Whether 
the  facts  justified  such  punishment  was  for  that  court  to  determine 
under  its  solemn  responsibiUty  to  do  justice,  and  to  maintain  its  own 
dignity  and  authority.  In  re  Chiles,  22  Wall.  157,  168.  Its  conclusion 
np'on  "such  facts,  we  repeat,  is  not,  under  the  statutes  regulating  the 
jurisdiction  of  this  court,  open  to  inquiry  or  review  in  this  collateral 
proceeding.  If  we  were  to  indulge  in  any  presumption  as  to  what 
actually  occurred  when  the  marshal  proceeded  in  the  execution  of  the 
order  to  remove  Mrs.  Terry  from  the  court-room,  we  must  presume 
that  the  Circuit  Court  fully  considered  tlie  statements  contained  in  the 
petition  of  September  12,  and  knowing  them  to  be  inaccurate  or  untrue, 
refused  to  set  aside  or  modify  its  previous  order  of  commitment.  Its 
action  in  that  regard  cannot  be  revised  or  annulled  by  this  court  upon 
an  original  application  for  habeas  corpus. 

Butlt  is  contended  that  the  order  of  September  3  was  void,  because, 
as  alleged  in  the  present  application  for  the  writ  of  habeas  corpus,  it 
was  made  in  the  "  absence  "  of  the  petitioner.  In  considering  this  sug- 
gestion, it  must  not  be  forgotten  that  the  order  of  imprisonment  shows, 
and  the  fact  is  not  asserted  to  be  otherwise,  that  it  was  made  and 
entered  on  the  same  day  on  which,  and,  presumably,  at  the  same  ses- 
sion of  the  court  at  which  the  contempt  was  committed ;  and  there  is 
no  claim  that  any  more  time  intervened  between  the  commission  of  the 
contempt,  and  the  making  of  the  order,  than  was  reasonably  required 
to  prepare  and  enter  in  due  form  such  an  order  as  the  court,  upon 
consideration,  deemed  proper  or  necessary.  Indeed,  the  petition  of 
September  12,  made  part  of  the  present  application,  shows  that  the 
petitioner,  after  his  personal  conflict  with  the  marshal  in  the  presence 
of  the  judges,  voluntarily  left  the  court-room,  and  with  drawn  knife 
forced  his  way  into  another  room  in  the  same  building,  occupied  by 
the  marshal,  and  to  which,  we  presume,  the  latter,  in  executing  the 
order  above  referred  to,  had  removed  Mrs.  Terr3^  There  is  no  pre- 
tence that  the  petitioner  left  the  building  in  which  the  court  was  held 
before  the  order  of  commitment  was  passed. 

The  precise  question,  therefore,  to  be  now  determined,  is  whether 
the  retirement  of  the  petitioner  from  the  court-room,  into  another  room 
of  the  same  building,  after  he  had  been  guilty  of  misbehavior  in  the 
presence  of  the  court,  and  had  violently  obstructed  the  execution  of  its 
lawful  order,  defeated  the  jurisdiction  which  it  possessed,  at  the 
moment  the  contempt  was  committed,  to  order  his  immediate  imprison- 
ment without  other  proof  than  that  supplied  by  its  actual  knowledge 
and  view  of  the  facts,  and  without  examination  or  trial  in  any  form? 
In  our  judgment  this  question  must  be  answered  in  the  negative. 
Jurisdiction  of  the  person  of  the  petitioner  attached  instantly  upon  the 
contempt  being  committed  in  the  presence  of  the  court.  That  jurisdic- 
tion was  neither  surrendered  nor  lost  by  delay  on  the  part  of  the  Cir- 
cuit Court  in  exercising  its  power  to  proceed,  without  notice  and  proof, 
and  upon  its  own  view  of  what  occurred,  to  immediate  punishment- 


CHAP.  XX.]  EX   PARTE  TERRY.  g-g 

The  departure  of  the  petitioner  from  the  court-room  to  another  room 
near  by,  in  the  same  building,  was  lus  vohmtury  act.  And  his  ,1,.,,../ 
ture,  without  making  some  apology  for,  or  exi>lanHtion  of,  his  conduct' 
might  justly  be  held  to  aggravate  his  otlence,  an.l  to  make  it  plain  that' 
consistently  with  the  public  interests,  there  should  be  no  delay  u|h„I 
the  part  of  the  court,  in  exerting  its  power  to  punish. 

If,  in  order  to  avoid  punishment,  he  had  absconded  or  lUd  from  the 
building,  immediately  after  his  conflict  with  the  marshal,  the  court    in 
its  discretion,  and  as  the  circumstances  rendered  propc-r,  could  have 
ordered  process  for  his  arrest  and  given  him  an  opportunity,  Muvt- 
sending  him  to  jail,  to  answer  the  charge  of  having  conunilicd  a  o«.n. 
tempt.     But  in  such  a  case  the  failure  to  order  his  arrest,  and  U>  eive 
him  such  opportunity  of  defence,  wouhl  not  affect  its  j.ower  to  inflict 
instant  punishment.     Jurisdiction    to  innict   such  punishment  having 
attached  while  he  was  in  the  presence  of  the  court,  it  would  not  have 
been  defeated  or  lost  by  his  flight  and  voluntary  absence.     Upon  this 
point  the  decision  in  Middlebrook  v.  State,  43  Connecticut,  257,  2G«, 
is  Instructive.     That  was  a  case  of  contempt  committed   by  a  gross 
assault  upon  another  in  open  court.     The  offender  immediately  left  tiie 
court-house  and  the  State.     The  court  made  reasonable  efforts  to  pro- 
cure  his   personal   attendance,    and,    those   failing,   a  judgment   was 
entered  in  his  absence,  sentencing  him  to  pay  a  fine  and  to  he  impris- 
oned for  contempt  of  court.     One  of  the  questions  presented  for  deter- 
mination was  whether  there  was  jurisdiction  of  the  person  of  the  absent 
ofTender.     The  court  said:   "  The  ofTence  was  intentionally  committed 
in  the  presence  of  the  court.     When  the  first  blow  was  struck,  that 
instant  the  contempt  was  complete,  and  jurisdiction  attached.     It  diil 
not  depend  upon  the  arrest  of  the  offender,  nor  upon  his  lieing  in 
actual  custody,  nor  even  upon  his  remaining  in  the  presence  of  the 
court.     When  the  offence  was  committed  he  was  in  the  presence  and, 
constructively,  at  least,  in  the  power  of  the  court.     lie  may  by  flight 
escape  merited  punishment ;  but  that  cannot  otherwise  affect  the  right 
or  the  power  of  the  court.     Before  the  court  could  exert  its  power,  the 
offender,  taking  advantage  of  the  confusion,  absented  himself  and  went 
bej'ond  the  reach  of  the  court ;  but,  nevertheless,  the  jurisdiction  re- 
mained, and  it  was  competent  for  the  court  to  take  such  action  as 
might  be  deemed  advisable,  leaving  the  action  to  be  enforced  and  the 
sentence  carried  into  execution  whenever  there  might  be  an  opportunity 
to  do  so.     If  it  was  necessary  that  the  judgment  should  be  i)receded  by 
a  trial,  and  the  facts  found  upon  a  judicial  hearing  as  with  ordinary 
criminal  cases,  it  would  be  otherwise.     But  in  this  proceeding  nothing 
of  the  kind  was  required.     The  judicial  eye  witnessed  the  act  and  the 
judicial  mind  comprehended  all  the  circumstances  of  aggravation,  i»ro- 
vocation,  or  mitigation  ;  and  the  fact  being  thus  judicially  est-iI)IislR'd, 
it  only  remained  for  the  judicial  arm  to  inflict  proper  punishment."     It 
is  true  that  the  present  case  difTers  from  the  one  just  cited  in  that  the 
ofTender  did  not  attempt  by  flight  to  escape  punishment  for  his  offence. 


880  EX   PARTE   TERRY.  [CHAP.  XX. 

But  that  circumstance  could  not  affect  the  power  of  the  Circuit  Court, 
without  trial  or  further  proof,  to  inflict  instant  punishment  upon  the 
petitioner  for  the  contempt  committed  in  its  presence.  It  was  within 
the  discretion  of  that  court,  whose  dignity  he  had  insulted,  and  whose 
authority  he  had  openly  defied,  to  determine  whether  it  should,  upon 
its  own  view  of  what  occurred,  proceed  at  once  to  punish  him,  or  post- 
pone action  until  he  was  arrested  upon  process,  brought  back  into  its 
presence,  and  permitted  to  make  defence.  Any  abuse  of  that  discre- 
tion would  be  at  most  an  irregularity  or  error,  not  affecting  the  jurisdic- 
tion of  the  Circuit  Court. 

We  have  not  overlooked  the  earnest  contention  of  petitioner's  coun- 
sel that  the  Circuit  Court,  in  disregard  of  the  fundamental  principles  of 
Magna  Charta,  in  the  absence  of  the  accused,  and  without  giving  him 
any  notice  of  the  accusation  against  him,  or  any  opportunity  to  be 
heard,  proceeded  "  to  accuse,  to  try  and  to  pronounce  judgment,  and 
to  order  him  to  be  imprisoned ;  this,  for  an  alleged  offence  committed 
at  a  time  preceding,  and  separated  from,  the  commencement  of  his 
prosecution."  We  have  seen  that  it  is  a  settled  doctrine  in  the  juris- 
prudence both  of  England  and  of  this  country,  never  supposed  to 
be  in  conflict  with  the  liberty  of  the  citizen,  that  for  direct  contempts 
committed  in  the  face  of  the  court,  at  least  one  of  superior  jurisdiction, 
the  offender  may,  m  its  discretion,  be  instantly  apprehended  and 
immediately  imprisoned,  without  trial  or  issue,  and  without  other  proof 
than  its  actual  knowledge  of  what  occurred  ;  and  that,  according  to  an 
unbroken  chain  of  authorities,  reaching  back  to  the  earliest  times,  such 
power,  although  arbitrary  in  its  nature  and  liable  to  abuse,  is  absolutely 
essential  to  the  protection  of  the  courts  in  the  discharge  of  their  func- 
tions. Without  it,  judicial  tribunals  would  be  at  the  mercy  of  the  dis- 
orderly and  violent,  who  respect  neither  the  laws  enacted  for  the 
vindicating  of  public  and  private  rights,  nor  the  officers  charged  with 
the  duty  of  administering  them.  To  say,  in  case  of  a  contempt  such  as 
is  recited  in  the  order  below,  that  the  offender  was  accused,  tried,  ad- 
judged to  be  guilty  and  imprisoned,  without  previous  notice  of  the 
accusation  against  him  and  without  an  opportunity  to  be  heard,  is 
nothing  more  than  an  argument  or  protest  against  investing  any  court, 
however  exalted,  or  however  extensive  its  general  jurisdiction,  with  the 
power  of  proceeding  summarily,  without  further  proof  or  trial,  for 
direct  contempts  committed  in  its  presence. 

Nor,  in  our  judgment,  is  it  an  accurate  characterization  of  the  present 
case  to  say  that  the  petitioner's  oflfence  was  committed  "at  a  time 
preceding,  and  separated  from,  the  commencement  of  his  prosecution." 
His  misbehavior  in  the  presence  of  the  court,  his  voluntary  departure 
from  the  court-room  without  apology  for  the  indignity  he  put  upon  the 
court,  his  going  a  few  steps,  and  under  the  circumstances  detailed  by 
him,  into  the  marshal's  room  in  the  same  building  where  the  court  was 
held,  and  the  making  of  the  order  of  the  commitment,  took  place,  sub- 
stantially, on  the  same  occasion,  and  constituted,  in  legal  effect,  one 


CHAP.  XX.]  IN  EE  HARDWICK.  ggj 

continuous  complete  transaction,  occurring  on  the  same  .Jav  an,!  at 
the  same  session  of  the  court.  The  juriscliction,  therefore.,  of  'the  Cir 
cult  Court  to  enter  an  order  for  the  offender's  arrest  a.ul  imprisonment 
was  as  full  and  coan)lete  as  when  he  was  in  the  court-ro<jm  in  the 
immediate  presence  of  the  judges. 

Whether  the  Circuit  Court  would  have  ha<l  the  power  at  a  subsequent 
term,  or  at  a  subsequent  day  of  the  same  term,  t<.  order  his  arreRi  n,„I 
imprisonment  for  the  contempt,  without  first  causing  hi.n  to  be  brouL'hl 
into  its  presence,  or  without  making  reasonable  elforts  bv  rule  or  attach- 
ment to  bring  him  into  court,  and  giving  him  an  opportunitv  to  l)o 
beard  before  being  fined  and  imprisoned,  is  a  question  nut  nJcessary 
to  be  considered  on  the  present  hearing. 

Tli£  application  for  the  icrit  ofhaheas  corj.ns  is  ,I.,.i.,l. 


In  Re   HARDWICK. 
Court  op  Appeal.     1883. 

[Reported  12  Q.  B.  D.  148.] 

This  was  an  appeal  by  a  solicitor  from  an  order  of  the  Queen's 
Bench  Division,  by  which  it  was  ordered  that  he  should  be  struck  off 
the  rolls  for  misconduct.  The  case  first  came  on  before  tiie  Court  of 
Appeal  on  the  30th  of  November  and  1st  of  December  last,  when  a 
preliminary  objection  having  been  taken  by  A.  Wills,  Q.C.,  for  tlie 
Incorporated  Law  Society  that  no  appeal  would  lie  from  such  order,  as 
it  was  made  in  a  criminal  cause  or  matter  within  the  meaning  of  the 
Judicature  Act,  1873  (36  «fe  37  Vict.  c.  &(j).>  s.  47,  the  court,  on  account 
of  the  importance  of  the  point,  desired  that  the  case  should  be  re-argue«l 
before  the  full  Court  of  Appeal. 

The  case  was  re-argued  accordingl}'. 

A.  Wills,  Q.  C.  (Ilollams,  with  him),  in  support  of  this  preliminary 
objection,  cited  Oliver  v.  Lawrence,  2  Str.  94G  ;  lie  Gellibrand,  1  I).  & 
R.  121 ;  Atcheson  v.  Everitt,  1  Cowp.  382  ;  3  Edw.  I.  c.  29  ;  4  Hen. 
IV".  c.  18  ;  and  6  &  7  Vict.  c.  73  ;  2  Coke's  Institutes,  cap.  29,  pp.  213, 
215;  Corayns' Digest,  tit.  Attorney,  B.  15;  Bacon's  Abridgment,  tit 
Attorney  H  ;  Viner's  Abridgment,  tit.  Attorney-  (^ ;  lie  Mant,  j  L.  T. 
(n.  s.)  254;  Be  Blake,  3  K.  &  E.  34;  30  L.'j.  (Q.  B)  32;  Jerome's 
Case,  Cro.  Car.  74 ;  Stephen  on  Criminal  Law,  c.  i.  p.  1 . 

Foicell,  Q.  C.  (A.  Powell,  with  him),  appeared  for  the  appellant, 
but  was  not  called  upon. 

Brett,  M.  R.,  delivered  the  following  judgment  of  the  court'  :  — 

The  question  as  to  the  jurisdiction  of  tlie  court  whicii  has  l)ccn  raised 
in  this  case  is  one  which  might  be  of  vital  importance  to  the  racmWrs 

1  Bkett,  M.  R.,  and  Baggallat,  Cotton,  Lindley,  Bowf.v.  nn.!  Fur.  L  .1.1. 

56 


882  EX   PARTE   ROBINSON.  [CHAP.  XX. 

of  a  great  profession,  and  for  that  reason  only,  and  not  because  we 
who  had  heard  it  on  the  first  occasion  had  any  difficulty  about  it,  we 
desired  to  have  the  authority  of  the  full  court  for  the  decision.  All 
the  members  of  the  Court  of  Appeal  have  now  heard  the  argument  in 
support  of  the  objection  to  the  hearing  of  that  appeal,  and  they  have 
no  doubt  as  to  the  answer  to  be  given.  It  is  not  necessary  to  comment 
on  such  argument,  but  it  is  sufficient  to  say  that  the  whole  court  is  of 
opinion  that  the  jurisdiction  exercised  in  these  matters  b}'  the  High 
Court  is  a  disciplinary  jurisdiction  over  its  own  officers  and  not  a  juris- 
diction in  any  criminal  cause  or  matter.  Therefore  this  court  has 
jurisdiction  to  hear  this  appeal. 

The  appeal  was  then  heard,  and  after  argument  it  was  dismissed. 


Ex  Parte   ROBINSON. 
Supreme  Court  of  the  United  States.     1873. 

[Reported  19  Wallace,  505.] 

On  petition  by  J.  S.  Robinson,  an  attorney  at  law,  for  mandamus  to 
the  Judge  of  the  District  Court  for  the  Western  District  of  Arkansas, 
the  case  being  thus  :  — 

On  the  16th  of  July,  1873,  the  grand  jury  of  the  Western  District 
of  Arkansas  reported  to  the  District  Court  of  the  United  States  for  the 
district,  then  in  session  at  P^'ort  Smith,  that  in  a  case  in  which  a  certain 
Nash  was  a  party,  they  had  made  ever}-  effort  in  their  power  to  have  a 
witness  by  the  name  of  Silas  Stephenson  summoned  to  appear  before 
them  ;  that  for  this  purpose  a  subpoena  for  him  had  been  placed  the 
day  previous  in  the  hands  of  a  deput}'  marshal  b}-  the  name  of  Sheldon, 
for  service ;  that  the  deputy  marshal,  on  the  same  day,  went  to  the 
town  of  Van  Buren,  as  he  said,  to  make  the  service  ;  that  after  he  had 
left  the  said  town,  the  witness  was  seen  on  the  streets  at  Fort  Smith, 
and  the  subpoena  was  on  that  morning  returned  unserved ;  that  they 
had  learned  from  evidence  before  them  that  the  witness  knew  that  a 
subpoena  was  issued  for  him,  and  had  for  that  reason  come  to  Fort 
Smith,  "  but,"  continued  the  report,  "  after  seeing  the  attorney,  J.  S. 
Robinson,  in  the  Nash  case,  very  suddenly  absented  himself."  The 
jury  therefore  prayed  the  court  to  issue  an  order  that  the  witness, 
Stephenson,  be  brought  before  them. 

Upon  this  report,  without  other  complaint,  the  court  ordered  that 
Sheldon,  the  deputy  marshal,  Stephenson,  the  witness,  and  Robinson, 
the  attorne}',  "  show  cause  why  they  should  not  be  punished  as  for  a 
contempt." 

Two  days  afterwards,  on  the  18th  of  July,  the  petitioner  filed  the 
response  of  the  deputy  marshal  to  the  order.    The  judge  then  reminded 


CHAP.  XX.]  EX   PARTE   UOBINSON.  333 

the  petitioner  that  there  was  also  a  rule  against  him,  to  which  he  re,.Ucd  • 
-  les,  sir;  1  know  it,  and  I  am  here  to  respou.K  1  don't  know  what 
there  is  for  me  to  answer.  It,"  referring  to  the  report  of  the  grand 
jury,  -says  I  saw  Silas  Stephenson.  I  do  not  know  what  the  unnd 
jury  has  to  do  with  my  private  business  in  my  law  otUce,"  and  wa-s  uro- 
ceedmg  to  reflect  upon  the  action  of  the  grand  jury,  when  th.  jud-e 
said:  -lou  must  answer  in  writing,  Mr.  Robinson;"  to  which  the 
petitioner  replied,  -  The  rule  itself  does  not  require  me  to  respond  in 
writing.  Upon  this  the  judge  said,  turning  to  the  clerk  :  "  It  8li.,uld 
have  done  so  ;  you  will  amend  the  order  if  it  does  not,  Mr.  Clerk  "  Th.- 
petitioner  declined  to  answer  the  rule  until  It  was  amended  The  judce 
then  said:  "  Well,  I  wlU  make  the  order  for  vou  to  resjn.nd  in  writing 
now.  Mr.  Clerk,  you  will  enter  an  order  requiring  Mr.  Robinson  to 
answer  the  rule  in  writing."  Upon  which  the  petitioner  said :  "  I 
shall  answer  nothing ; "  and  thereupon  immediately,  without  time  for 
another  word,  the  judge  ordered  the  clerk  to  strike  the  petitioners 
name  from  the  roll  of  attorneys,  and  the  marshal  to  remove  him 
from  the  bar.^ 

The  petitioner  then  applied  to  this  court  for  the  present  mandamus ; 
a  mandamus  upon  the  judge  to  vacate  the  order  disbarring  him  and  to 
restore  him  to  the  roll  of  attorneys  and  counsellors.  In  liis  ijctition, 
which  was  verified,  he  referred  to  the  proceedings  of  the  court  below, 
the  record  of  which  was  on  file  in  this  court,  on  an  appeal  taken  from 
the  judgment  of  that  court ;  and  stated  that  in  the  interview  with  the 
witness  Stephenson  which  the  grand  jury  mentioned,  there  was  no  allu- 
sion made  to  the  Nash  case  or  to  the  grand  jury,  but  that  the  consul- 
tation then  had  with  the  witness  related  to  a  totally  different  matter. 

Mr.  Justice  Field,  after  stating  the  facts  of  the  case,  delivered  the 
opinion  of  the  court,  as  follows:  — 

The  power  to  punish  for  contempts  is  inherent  in  all  courts  ;  its  exist- 
ence IS  essential  to  the  preservation  of  order  in  judicial  proceedings, 
and  to  the  enforcement  of  the  judgments,  orders,  and  writs  of  the 
courts,  and  consequently  to  the  due  administration  of  justice.  The 
moment  the  courts  of  the  United  States  were  called  into  existence  and 
invested  with  jurisdiction  over  any  subject,  they  became  possessed  of 
this  power.  But  the  power  has  been  Uraited  and  defined  by  the  Act  of 
Congress  of  March  2d,  1831."  The  act,  in  terms,  applies  to  all  courts ; 
whether  it  can  be  held  to  limit  the  authority  of  the  Supreme  Court, 
which  derives  its  existence  and  powers  from  the  Constitution,  may 
perhaps  be  a  matter  of  doubt.  But  that  it  applies  to  the  Circuit 
and  District  Courts  there  can  be  no  question.  These  ct)urts  were 
created  by  act  of  Congress.  Their  powers  and  duties  dejicnd  npdu 
the  act  calling  them  into  existence,  or  subsequent  acts  extending  or 
limiting  their  jurisdiction.  The  Act  of  1831  is,  therefore,  to  them  the 
law  specifying  the  cases  in  which  summary  punishment  for  contempts 

1  Part  of  the  statement  of  facts  is  omitted. 

2  4  Stat,  at  Large,  487. 


884  EX   PARTE  ROBINSON.  [cHaP.  XX. 

may  be  inflicted.  It  limits  the  power  of  these  courts  in  this  respect  to 
three  classes  of  cases :  1st,  where  there  has  been  misbehavior  of  a 
person  in  the  presence  of  the  courts,  or  so  near  thereto  as  to  obstruct 
the  administration  of  justice ;  2d,  where  there  has  been  misbehavior 
of  an}'  officer  of  the  courts  in  his  official  transactions ;  and,  3d,  where 
there  has  been  disobedience  or  resistance  by  any  officer,  party,  juror, 
witness,  or  other  person,  to  any  lawful  writ,  process,  order,  rule,  decree, 
or  command  of  the  courts.  As  thus  seen  the  power  of  these  courts  in 
the  punishments  of  contempts  can  only  be  exercised  to  insure  order  and 
decorum  in  their  presence,  to  secure  faithfulness  on  the  part  of  their 
officers  in  their  official  transactions,  and  to  enforce  obedience  to  their 
lawful  orders,  judgments,  and  processes. 

If  we  now  test  the  report  of  the  grand  jury  by  this  statute,  we  find 
nothing  in  it  which  justified  any  proceeding  whatever  as  for  a  con- 
tempt on  the  part  of  the  court  below  against  Robinson.  No  act  of  his 
is  mentioned  which  could  constitute  within  the  statute  a  contempt 
either  of  the  court  or  of  its  judge.  The  allegation  that  the  witness 
Stephenson,  after  seeing  Robinson,  had  suddenly  absented  himself, 
amounted  to  nothing  more  than  an  insinuation  that  possibly  he  may 
have  been  advised  to  that  course  by  Robinson.  There  was  no  aver- 
ment of  any  fact  which  the  court  could  notice  or  the  attorney  was 
bound  to  explain. 

Wliatever  contempt  was  committed  by  the  petitioner  consisted  in 
the  tone  and  manner  in  which  his  language  to  the  court  was  uttered. 
On  this  hearing  we  are  bound  to  take  the  statements  in  that  respect  of 
the  judge  embodied  in  his  order  as  true,  for  the  question  before  us  is  not 
whether  the  court  erred,  but  whether  it  had  any  jurisdiction  to  disbar 
the  petitioner  for  the  alleged  contempt. 

The  law  happily  prescribes  the  punishment  which  the  court  can  impose 
for  contempts.  The  seventeenth  section  of  the  Judiciary  Act  of  1789 
declares  that  the  court  shall  have  power  to  punish  contempts  of  their 
authority'  in  any  cause  or  hearing  before  them,  by  fine  or  imprisonment, 
at  their  discretion.  The  enactment  is  a  limitation  upon  the  manner  in 
which  the  power  shall  be  exercised,  and  must  be  held  to  be  a  negation 
of  all  other  modes  of  punishment.  The  judgment  of  the  court  dis- 
barring the  petitioner,  treated  as  a  punishment  for  a  contempt,  was, 
therefore,  unauthorized  and  void. 

The  power  to  disbar  an  attorney  proceeds  upon  ver}'  different  grounds. 
This  power  is  possessed  by  all  courts  which  have  authority  to  admit 
attorneys  to  practice.  But  the  power  can  only  be  exercised  where 
there  has  been  such  conduct  on  the  part  of  the  parties  complained  of 
as  shows  them  to  be  unfit  to  be  members  of  the  profession.  Parties 
are  admitted  to  the  profession  onl}'  upon  satisfactor}'  evidence  that  they 
possess  fair  private  character  and  sufficient  legal  learning  to  conduct 
causes  in  court  for  suitors.  The  order  of  admission  is  the  judgment  of 
the  court  that  they  possess  the  requisite  qualifications  both  in  character 
and  learning.    They  become  by  such  admission  officers  of  the  court,  and 


CHAP.  XX.]  EX   PARTE   WALL. 


885 


as  said  in  Ex  parte  Garland,  4  Wallace,  378,  ''they  hold  thcii  otlicc 
during  good  behavior,  and  can  only  be  deprived  of  it  for  niiacouiluct 
ascertained  and  declared  by  tlie  judgment  of  the  court  after  opportunity 
to  be  heard  has  been  afforded."  Before  a  judgment  disbarring  un  attor- 
ney is  rendered  he  should  have  notice  of  the  grounds  of°conii)laini 
against  hira  and  ample  opportunity  of  explanation  and  defence.  This 
is  a  rule  of  natural  justice,  and  should  be  equally  followed  when  pro- 
ceedings are  taken  to  deprive  him  of  his  right  to  practise  his  profes- 
sion, as  when  they  are  taken  to  reach  his  real  or  i)ersonal  property. 
And  such  has  been  the  general,  if  not  tlie  uniform,  practice  of  the 
courts  of  this  country  and  of  England.  There  n)ay  be  cases  undoubt- 
edly of  such  gross  and  outrageous  conduct  in  open  court  on  tlie  purl  of 
the  attorney,  as  to  justify  very  summary  proceedings  for  his  suspen?,i()n 
or  removal  from  office  ;  but  even  then  he  should  be  heard  before  lie  is 
condemned.^  The  principle  that  there  must  be  citation  before  hearini;, 
and  hearing  or  opportunity  of  being  heard  before  judgment,  is  essL-nlial 
to  the  security  of  all  private  rights.  Without  its  observance  no  one 
would  be  safe  from  oppression  wherever  power  may  be  lodged. 

That  mandamus  is  the  appropriate  remedy  in  a  case  like  this  to 
restore  an  attorney  disbarred,  where  the  court  below  has  exceeded  its 
jurisdiction  in  the  matter,  was  decided  in -tTc/x-o-ie  Bradley,  reported 
in  the  7th  of  Wallace.  It  would  serve  no  useful  purpose  to  repeat  the 
reasons  by  which  this  conclusion  was  reached,  as  they  are  fully  and 
clearly  stated  in  that  case,  and  are  entirely  satisfactory. 

A  peremptor}'  mandamus  must  issue,  requiring  the  judge  of  the 
court  below  to  vacate  the  order  disbarring  the  petitioner,  and  to  restore 
him  to  his  office.  Mandamus  avoardtd. 


Ex  Parte  WALL. 
Supreme  Court  of  the  United  States.     1882. 

[Reported  107  U.  S.  265.] 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

A  petition  was  filed  in  this  case  by  J.  B.  Wall  for  an  alternate  writ 
of  mandamus  to  be  directed  to  James  W.  Locke,  district  judge  of  the 
United  States  for  the  Southern  District  of  Florida,  to  show  cause  why 
a  peremptory  writ  should  not  issue  to  compel  him  to  vacate  an  ordiT 
made  by  him  as  such  district  judge,  prohibiting  said  Wall  from  practis- 
ing at  the  bar  of  said  court,  and  to  restore  said  Wall  to  the  rights, 
privileges,  and  immunities  of  an  attorney  and  proctor  thereof.  The 
petition  set  forth  the  proceedings  complained  of,  and  an  order  was 
made  by  this  court  requiring  the  judge  to  show  cause  why  the  prayer  of 

1  Ex  parte  Heyfron,  7  Howard's  Mississippi  Reports,  127  ;  People  v.  Turner.  1  Cil- 
ifornia,  148;  Fletcher  v.  Daingerfield,  20  Id.  430;  Beene  r.  State,  22  Arkaiu-v.  157; 
Ex  parte  Bradley,  7  WaUace,  364;  Bradley  v.  Fibber,  13  Id.  354. 


886  EX   PARTE   WALL.  [CHAP.  XX. 

the  petition  sbould  not  be  granted.  The  rule  to  show  cause  has  been 
answered,  and  we  are  now  called  upon  to  decide  whether  the  writ 
ought  to  be  granted.^ 

The  answer  of  Judge  Locke  to  the  rule  granted  b}'  this  court  to  show 
cause  why  a  mandamus  should  not  issue,  states  :  — 

"  That  during  a  session  of  the  Circuit  and  District  Courts  of  the 
United  States  at  Tampa,  in  said  Southern  District  of  Florida,  he,  the 
said  James  W.  Locke,  presiding,  on  the  sixth  da}-  of  March,  a.  d.  1882, 
at  the  adjournment  of  said  courts  for  dinner,  at  about  one  o'clock  of 
said  da}',  as  he  was  passing  from  the  court-house,  a  prisoner  was  being 
brought  to  the  jail  in  the  same  yard  by  two  officers  ;  that  upon  his 
return  to  the  court-house  after  dinner,  in  a  little  more  than  an  hour,  the 
dead  body  of  the  same  prisoner  hung  from  the  limb  of  a  tree  directly  in 
front  of  the  court-house  door  ;  whereb}'  he  became  personally  informed 
of  the  commission  of  a  most  serious  offence  against  the  laws.  The  same 
afternoon  he  was  informed  of  the  active  participation  in  said  crime  of 
one  J.  B.  Wall,  an  attorney  of  said  court,  by  an  eye-witness  in  whom 
the  most  implicit  confidence  could  be  placed,  but  who  declined  to  make 
any  charge  or  affidavit  of  such  fact  on  account  of  a  fear  of  said  Wall's 
influence  and  the  local  feeling  it  would  cause  against  him,  the  said 
witness. 

"That  not  only  from  the  direct  statements  of  eye-witnesses,  but 
from  numerous  other  sources,  reliable  information  of  like  import  was 
received  ;  whereupon  said  J.  B.  Wall,  your  petitioner,  was,  on  the  said 
7th  da}'  of  March,  during  a  session  of  the  Circuit  Court  of  the  United 
States,  in  open  court,  charged  in  writing  by  the  respondent  herein,  as 
judge,  with  having,  with  an  unlawful,  tumultuous,  and  riotous  gathering, 
he  advising  and  encouraging  thereto,  taken  from  the  jail  of  Hillsborough 
County,  and  hanged  to  a  tree  by  the  neck  until  he  was  dead,  a  man  to 
the  court  known  only  as  John  ;  and  cited  by  rule  served  upon  him  to 
show  cause  by  eleven  o'clock  a.  m.  of  the  next  day,  the  eighth  day  of 
said  March,  why  his  name  should  not  be  stricken  from  the  roll  of 
attorneys  and  he  prohibited  from  practising  in  the  U.  S,  courts  of  said 
district. 

"That  at  said  time  of  return,  said  J.  B.  Wall  appeared  in  person, 
and  by  counsel,  and  moved  that  whereas  said  rule  had  charged  him 
with  a  criminal  offence,  indictable  by  the  grand  jury  of  the  courts  of 
the  state,  the  matter  be  continued  until  after  the  meeting  of  such  grand 
jury  ;  and  the  matter  was  held  under  advisement  by  the  court  and  con- 
tinued until  next  day. 

*'That  at  the  opening  of  the  court  the  next  day,  before  any  order 
had  been  made  upon  the  pending  motion,  came  said  J.  B.  Wall,  and 
withdrew  said  motion  for  continuance,  and  filed  answer  demurring  to 
the  right  of  the  court  to  issue  the  rule  served  upon  him,  because  [stating 
the  contents  of  Wall's  answer],  and  demanded  that  proof  be  had  of  the 
matter  charged. 

1  Parts  of  the  statement  of  facts  and  of  the  opinion  have  been  omitted. 


CHAP.  XX.]  EX   PARTE   WALL.  ggy 

-That  thereupon  Peter  A.  Williams,  Esq..  U.  S.  marshal  for  «aia 
disti-ic,  being  duly  sworn,  testified  as  follows:  [.stating  the  tCBtimony 
of  Williams,  as  before  given.]  ^ 

"  Whereupon  J.  B.  Wall,  being  himself  present,  and  stating  that  be 
had  no  testimony  to  offer,  and  desiring  to  be  heard  by  coun.scl,  wa.s  i*o 
heard,  and  the  court  took  the  matter  under  con.sidcrution 

"  Afterwards,  to  wit,  on  the  tenth  day  of  March  aforesaid,  llio  matter 
having  been  fully  and  duly  considered,  it  was  ordered  that  J  H  Wa'l 
be  prohibited  from  practising  at  the  bar  of  Circuit  or  District  CourU  of 
this  district  until  further  order  therein. 

"  All  of  which  matters  are  true,  and  as  far  as  relate  to  the  action  of 
the  court  therein  shown  and  set  forth  in  the  records  of  said  court  and 
the  papers  therein, 

"And,  further  answering,  he  says  that  J.  B.  Wall  at  no  time  denied 
active  participation  in  the  hanging  as  charged,  nor  answered  the  spirit 
and  substance  of  said  charge. 

"  That  when  the  motion  for  continuance  was  withdrawn  by  hiin,  and 
the  demand  made  that  proof  be  made  of  the  charge,  upon  inquiry  your 
respondent  ascertained  that  both  the  sheriff  and  mayor,  who  had*  alone 
opposed  the  action  of  the  mob,  and  the  only  parties  present  not  active 
participants,  were  absent  from  the  city,  and  could  not  be  suninionc<l  to 
testify  without  unadvisable  delay;  of  all  of  which  said  J.  J'..  Wall  had 
knowledge. 

' '  That  on  account  of  the  excited  state  of  feeling  existing  at  the  time, 
the  timidit}'  of  many,  from  the  influential  position  of  some  of  those 
engaged  in  the  hanging,  and  the  sympathy  of  others  with  the  lynchers, 
it  was  not  advisable  to  attempt  to  compel  any  resident  of  said  city  of 
Tampa  who  was  found  to  have  personal  knowledge  of  the  matter,  to 
testifj'  against  said  J.  B.  Wall. 

"  That  said  J.  B.  Wall  had  ever}'  opportunity  to  explain  his  pres- 
ence and  action  in  the  matter  as  proven,  if  innocent,  but  made  no 
attempt  to  do  so. 

"  That  the  evidence,  although  of  but  a  single  witness,  for  grounds 
alread}'  stated,  was  to  3'our  respondent  positively  conclusive  beyond  a 
reasonable  doubt  that  said  J.  B.  Wall  had  been  guilty  of  active  partici- 
pation in  a  most  immoral  and  criminal  act,  and  a  leader  in  a  most 
atrocious  murder,  in  defiance  and  contempt  of  all  law  and  justice,  and 
had  thereby  shown  himself  unfitted  to  longer  retain  the  position  of  an 
attorney  in  any  court  over  which  your  respondent  might  have  the  honor 
to  preside. 

"  Wherefore  and  upon  which  showing  your  respondent  would  most 
humbly  submit  to  your  Honors  that  said  order  prohibiting  said  J.  H. 
Wall  from  practising  as  attorney  should  not  be  revoked  nor  he  rostor.  d 
to  the  rights  and  privileges  of  an  attorney  of  said  courts. 

"  J.\MKS    W.     LOCKF, 

'^  U.  S.  Dis.  Judge,  So.  Dis.  Fl<i 
"Ket  West,  Fla.,  Dec'r  2,  1882." 


888  EX   PARTE   WALL.  fCHAP.  XX. 

It  will  be  perceived  that  the  rule  to  show  cause,  which  was  served 
upon  the  petitioner,  contained  a  definite  charge  of  a  verj'  heinous 
offence,  and  that  an  opportunity  was  given  to  him  to  meet  it  and  to  ex- 
onerate himself  if  he  could  do  so.  It  would,  undoubtedly,  have  been 
more  regular  to  have  required  the  charge  to  be  made  by  affidavit,  and 
to  have  had  a  copy  thereof  served  (with  the  rule)  upon  the  petitioner. 
But  the  circumstances  of  the  case,  as  shown  by  the  return  of  the  judge, 
seem  to  us  to  have  been  sufficient  to  authorize  the  issuing  of  the  rule 
without  such  an  affidavit.  The  transaction  in  which  the  petitioner  was 
charged  with  participating  was  virtually  in  the  presence  of  the  court. 
It  took  place  in  open  day,  in  front  of  the  court-house,  and  during  a 
temporary  recess  of  the  actual  session  of  the  court ;  and  the  awful 
result  of  the  lawless  demonstration  was  exhibited  to  the  judge  on  his 
return  to  the  court-room.  Under  the  intense  excitement  which  pre- 
vailed, it  is  not  wonderful  that  no  person  could  be  found  willing  to  make 
a  voluntary  charge  against  the  petitioner  or  any  one  else ;  and  yet,  the 
fact  that  he  was  engaged  as  one  of  the  perpetrators  was  so  notorious, 
and  was  brought  to  the  judge's  knowledge  by  information  so  reliable 
and  positive,  that  he  justly  felt  it  his  duty  to  take  official  notice  of  it, 
and  to  give  the  petitioner  an  opportunity  of  repelling  the  charge. 
This  was  done  in  such  a  manner  as  not  to  deprive  him  of  any  substan- 
tial right.  The  charge  was  specific,  due  notice  of  it  was  given,  a  reason- 
able time  was  set  for  the  hearing,  and  the  petitioner  was  not  required 
to  criminate  himself  by  answering  under  oath.  In  Ex  parte  Steinman 
and  Hensel,  95  Pa,  220,  where  the  county  court  on  its  own  motion  had 
cited  the  parties  before  it  for  publishing  a  gross  libel  upon  the  court, 
and  had  struck  their  names  from  the  roll,  though  on  appeal,  the  order 
was  reversed  on  other  grounds,  as  to  the  mode  of  initiating  the  pro- 
ceedings, Chief  Justice  Sharswood,  delivering  the  opinion  of  the  court, 
said:  "We  entertain  no  doubt  that  a  court  has  jurisdiction  without 
any  formal  complaint  or  petition,  upon  its  own  motion,  to  strike  the 
name  of  an  attorney  from  the  roll  in  a  proper  case,  provided  he  has 
had  reasonable  notice,  and  been  afforded  an  opportunity'  to  be  heard  in 
his  defence."  In  the  case  of  Randall  v.  Brigham,  7  Wall.  523,  539, 
which  was  an  action  for  damages  brought  by  an  attorney  against  a  judge 
for  striking  his  name  from  the  roll  unjustl}'  and  without  authority, 
not  having  before  him  in  making  the  order  to  show  cause  any  charge  of 
misconduct,  except  only  a  letter  of  a  third  person  addressed  to  the  grand 
jury  ;  this  court,  speaking  by  Mr.  Justice  Field,  said  :  "  But  the  claim 
of  the  plaintiff  is  not  correct.  The  information  imparted  by  the  let- 
ter was  sufficient  to  put  in  motion  the  authority  of  the  court,  and  the 
notice  to  the  plaintiff  was  sufficient  to  bring  him  before  it  to  explain 
the  transaction  to  which  the  letter  referred.  The  informality  of  the 
notice,  or  of  the  complaint  by  letter,  did  not  touch  the  question  of 
jurisdiction.  The  plaintiff  understood  from  them  the  nature  of  the 
charge  against  him  ;  and  it  is  not  pretended  that  the  investigation 
which   followed  was   not  conducted   with  entire   fairness.      He  was 


^"^P-  XX-]  EX   PARTE   WALL.  889 

f  iKluct.'' "'''  ^PP°^*-ity  to  explain  the  transaction  and  vindicau-  L. 

Looking  at  all  the  circumstances  of  the  present  case,  we  are  not  pre- 
pared to  say  that  the  course  which  was  pursued  rendered  the  ,  ro  .1 
ings  void,  as  being  coram  non  judicc.  And  since  they  were  n^t  vL  1 
(though  not  strictly  regular),  and  since  no  substanlld  r  ^h  of  t 
petitioner  was  invaded,  we  do  not  think  that  the  mere  form  of  e 
Inrndlmuf.  "'"""  "   '"  '^'"^""  '^'  ^'^  -^''-^li-ry  remedy  of 

The  next  question  to  be  considered  is,  whether  the  facts  charL-ed 
against  the  petitix^ner  constitute  a  legitimate  ground  for  striking  lus 
nunie  from  he  roll.  Of  this  we  think  there  can  be  no  doubt  It  is  not 
contended  but  that,  if  properly  proven,  the  facts  charged  are  Ljood 
cause  for  removal  from  the  bar.  A  moment's  consideration  will  be 
suiTicient  to  demonstrate  this. 

It  is  laid  down  in  all  the  books  in  whicli  the  subject  is  treated   lint  a 
court  has  power  to  exercise  a  summary  jinisdiction  over  its  attornevs 
to  compel  them  to  act  honestly  towards  their  clients,  and  to  punisii  Iht-m 
by  fine  and  imprisonment  for  misconduct  and  contempts,  and,  in  gross 
cases  of  misconduct,  to  strike  their  names  from  the  roll.     IfVe-ndarlv 
convicted  of  a  felony,  an  attorney  will  be  struck  off  the  roll  as  of  course 
whatever  the  felony  may  be,  because  he  is  rendered  infamous.     If  con- 
victed of  a  misdemeanor  which  imports  fraud  or  dishonestv,  the  same 
course  will  be  taken.     He  will  also  be  struck  off  the  roll  for  gross  mal- 
practice or  dishonesty  in  his  profession,  or  for  conduct  gravelv  atrecting 
his  professional  character.     In  Archbold's  Practice,  edition  hy  Chitl\" 
p.  148,  it  is  said  :  "The  court  w^ill,  in  general,  interfere  in  this  sum- 
mary way  to  strike  an  attorney  off  the  roll,  or  otherwise  punish  him, 
for  gross  misconduct,  not  only  in  cases  where  the  misconduct  has  arisen 
in  the   course  of  a  suit,  or  other  regular  and  ordinary  business  of  an 
attorney,  but  where  it  has  arisen  in  any  other  matter  so  connected  with 
his  professional  character  as  to  afford  a  fair  presumption  that  he  was 
emploj-ed  in  or  intrusted  with  it  in  consequence  of  that  character." 
And  it  is  laid  down  by  Tidd  that  "  where  an  attorney  has  been  frautlu- 
lently  admitted,  or  convicted  (after  admission)  of  felony,  or  other  offence 
which  renders  him  unfit  to  be  continued  an  attorney,  or  has  knowinglv 
suffered  his  name  to  be  made  use  of  by  an  unqualified  person,  or  acted 
as  agent  for  such  person,  or  has  signed  a  fictitious  name  to  a  demurrer, 
as  and  for  the  signature  of  a  barrister,  or  otherwise  grossly  mi.sbeliaved 
himself,  the  court  will  order  him  to  be  struck  off  the  roll."     1  'i'itld'a 
Practice,  89,  ed.  9.     Where  an  attorney  was  nonvictt'd  of  thefl,  and  the 
crime  was  condoned  by  burning  in  the  hand,  he  was  nevertheless  struck 
from  the  roll.      "The  question  is,"  said  Lord  Mansfield,   "  whether, 
after  the  conduct  of  this  man,  it  is  proper  that  he  should  continue  a 
member  of  a  profession  which  should  stand  free  from  all  suspicion.   .   . 
It  is  not  by  way  of  punishment ;  but  the  court  in  such  cases  exercise 


890  EX   PARTE  WALL.  [CHAP.  XX. 

their  discretion,  whether  a  man  whom  they  have  formerly  admitted  is  a 
proper  person  to  be  continued  on  the  roll  or  not." 

Now,  what  is  the  offence  with  which  the  petitioner  stands  charged? 
It  is  not  a  mere  crime  against  the  law ;  it  is  much  more  than  that.  It 
is  the  prostration  of  all  law  and  government ;  a  defiance  of  the  laws  ;  a 
resort  to  the  methods  of  vengeance  of  those  who  recognize  no  law,  no 
society,  no  government.  Of  all  classes  and  professions,  the  lawyer  is 
most  sacredly  bound  to  uphold  the  laws.  He  is  their  sworn  servant ; 
and  for  him,  of  all  men  in  the  world,  to  repudiate  and  override  the  laws, 
to  trample  them  under  foot,  and  to  ignore  the  very  bands  of  society, 
argues  recreancy  to  his  position  and  office,  and  sets  a  pernicious  ex- 
ample to  the  insubordinate  and  dangerous  elements  of  the  body  poUtic. 
It  manifests  a  want  of  fidelity  to  the  system  of  lawful  government  which 
he  has  sworn  to  uphold  and  preserve.  Whatever  excuse  may  ever  exist 
for  the  execution  of  lynch  law  in  savage  or  sparsely  settled  districts,  in 
order  to  oppose  the  ruffian  elements  which  the  ordinary  administration 
of  law  is  powerless  to  control,  it  certainly  has  no  excuse  in  a  commu- 
nity wliere  the  laws  are  duly  and  regularly  administered. 

But  besides  the  character  of  the  act  itself,  as  denoting  a  gross  want 
of  fealty  to  the  law  and  repudiation  of  legal  government,  the  particular 
circumstances  of  place  and  time  invest  it  with  additional  aggravations. 
The  United  States  court  was  in  session  ;  this  enormity  was  perpetrated 
at  its  door ;  the  victim  was  hanged  on  a  tree,  with  audacious  effrontery, 
in  the  virtual  presence  of  the  court!  Ko  respect  for  the  dignity  of  the 
government  as  represented  b}'  its  judicial  department  was  even  affected  ; 
the  judge  of  the  court,  in  passing  in  and  out  of  the  place  of  justice,  was 
insulted  by  the  sight  of  the  dangUng  corpse.  What  sentiments  ought 
such  a  spectacle  to  arouse  in  the  breast  of  an}'  upright  judge,  when 
informed  that  one  of  the  officers  of  his  own  court  was  a  leader  in  the 
perpetration  of  such  an  outrage  ? 

We  have  no  hesitation  as  to  the  character  of  the  act  being  sufficient 
to  authorize  the  action  of  the  court. 

A  question  of  greater  difficulty  is  raised  as  to  the  legalit}'  of  proceed- 
ing in  a  summary  way  on  a  charge  of  this  nature.  It  is  strenuously 
contended  that  when  a  crime  is  charged  against  an  attorney  for  which 
he  may  be  Indicted,  and  the  truth  of  the  charge  is  denied  or  not  admit- 
ted by  him,  it  cannot  be  made  the  ground  of  an  application  to  strike 
his  name  from  the  roll  until  he  has  been  regularly  convicted  b}'  a  jury 
in  a  criminal  proceeding ;  or,  at  least,  that  this  is  true,  when  the  act 
charged  was  not  committed  in  his  professional  character. 

As,  in  urging  this  argument,  much  stress  is  laid  upon  the  fact  that 
the  petitioner,  by  his  answer,  denied  the  charge  contained  in  the  rule  to 
show  cause,  it  is  proper  to  notice  the  manner  in  which  this  denial  was 
made.  The  charge,  as  we  have  seen,  was  specific  and  particular: 
"  That  J.  B.  Wall,  an  attorney  of  this  court,  did,  on  the  sixth  day  of 
this  present  month,  engage  in  and  with  an  unlawful,  tumultuous,  and 
riotous  gathering,  he  advising  and  encouraging  thereto,  take  from  the 


CHAP.  XX.]  EX   PAKTE  WALL. 


891 


jail  of  Hillsborough  County  and  hang  by  the  neck  until  be  was  (k-a.l 
one  John,  otherwise  unknown,  thereby  showing  an  utter  disregard  ft,,,! 
contempt  for  the  law  and  its  provisions,"  &c.  The  denial  of  this  eharL'c 
was  a  mere  negative  pregnant,  amoiniting  only  to  a  denial  of  the  attend- 
ing circumstances  and  legal  consequences  ascribed  to  th.i  act  The 
respondent  denied  -  counselling,  advising,  encouraging,  or  assisting  an 
unlawful,  tumultuous,  and  riotous  gathering  or  raol)  in  Uiking  one  John 
from  the  jail  of  Hillsborough  County  and  causing  his  death  by  hanging 
in  contempt  and  defiance  of  the  law."  He  was  not  required'  to  answer 
under  oath,  and  did  not  do  so.  Yet,  free  from  tliis  restriction,  he  did  n„t 
come  out  fully  and  fairly  and  deny  that  he  was  engaged  in  tlie  transac- 
tion at  all ;  but  only  that  he  did  not  engage  in  \t  with  the  attendant 
circumstances  and  legal  consequences  set  out  in  the  charge.  Even  the 
name  of  the  victim  is  made  a  material  part  of  the  traverse. 

Upon  such  a  special  plea  as  this,  we  think  the  court  was  justified  in 
regarding  the  denial  as  unsatisfactory.  It  was  really  equivalent  to  an 
admission  of  the  substantial  matter  of  the  charge. 

Nevertheless,  the  marshal  of  the  court  was  called  as  a  witness,  and 
clearly  proved  the  truth  of  the  charge  ;  and  no  evidence  was  offered  in 
rebuttal.  The  case,  as  it  stood  before  the  court,  was  as  clear  of  all  doubt 
as  if  the  petitioner  had  expressly  admitted  his  participation  in  the 
transaction. 

It  is  necessary,  however,  that  we  should  examine  the  authorities  on 
the  question  raised  by  the  petitioner,  as  to  the  power  of  the  court  to 
proceed  against  him  without  a  previous  conviction  upon  an  indictment.' 

The  rule  to  be  deduced  from  all  the  English  authorities  seems  to  be 
this  :  that  an  attorney  will  be  struck  off  the  roll  if  convicted  of  felony, 
or  if  convicted  of  a  misdemeanor  involving  want  of  integrity,  even  though 
the  judgment  be  arrested  or  reversed  for  error;  and  also  (without  a 
previous  conviction)  if  he  is  guilty  of  gross  misconduct  in  his  profes- 
sion, or  of  acts  which,  though  not  done  in  his  professional  capacity, 
gravely  affect  his  character  as  an  attorne}' :  but  in  the  latter  case,  if 
the  acts  charged  are  indictable,  and  are  fairly  denied,  the  court  will  not 
proceed  against  him  until  he  has  been  convicted  by  a  jury  ;  and  will  in 
no  case  compel  him  to  answer  under  oath  to  a  charge  for  which  he  may 
be  indicted. 

This  rule  has,  in  the  main,  been  adopted  by  the  courts  of  this  country  ; 
though  special  proceedings  are  provided  for  by  statute  in  some  of  the 
States,  requiring  a  formal  information  under  oath  to  be  filed,  with 
regular  proceedings  and  a  trial  by  jury.  The  cases  are  quite  numerous 
in  which  attorneys,  for  malpractice  or  other  misconduct  in  tlu'ir  olliti.il 
character,  and  for  other  acts  which  showed  them  to  be  unfit  i)crsons  to 
practise  as  attorneys,  have  been  struck  from  the  roll  upon  n  summary 
proceeding  without  any  previous  conviction  of  a  criminal  charge.     Sec, 

1  Here  the  learned  judge  examined  the  foUowing  Engli.xh  case.s  Anon.,  5  B.  &  Ad. 
1088;  Anon.,  3  N.  &  P.  389  ;  Anon.,  2  Dowl.  Pr.  110;  Stephens  i-  Hill,  10  .M  &.  W 
28 ;  Ee  Blake,  3  E.  &  E.  34 ;  Re  Hill,  L.  R  3  Q.  B.  543.  —  Ed. 


892  EX   PARTE   WALL.  [CHAP.  XX. 

amongst  others,  the  case  of  Niven,  1  Wheeler,  Crim.  Cas.  337,  note ; 
Ex  Parte  Burr,  Id.  503  ;  s.  c.  2  Cranch  C.  C.  379  ;  In  the  Matter  of 
Peterson,  3  Paige  (N.  Y.),  510  ;  Eximrte  Brown,  1  How.  (Miss.)  303  ; 
In  the  Matter  of  Mills,  1  Mich.  392  ;  Ex  parte  Secombe,  19  How.  9  ; 
Jn  re  John  Percy,  36  N.  Y.  651;  Dickens's  Case,  67  Pa.  169;  In 
re  Hirst  and  IngersoU,  9  Phil.  (Pa.)  216;  Baker  v.  Commonwealth, 
10  Bush  (Ky.),  592;  Penobscot  Bar  v.  Kimball,  64  Me.  140;  Matter 
of  George  W.  Wool,  36  Mich.  299  ;  People  v.  Goodrich,  79  111.  148; 
Delano's  Case,  58  N.  H.  5  ;  Ex  parte  Walls,  64  Ind.  461  ;  lu  the 
Matter  of  Eldridge,  82  N.  Y.  161. 

But  where  the  acts  charged  against  an  attorne}-  are  not  done  in  his 
official  character,  and  are  indictable,  and  not  confessed,  there  has  been 
a  diversity  of  practice  on  the  subject :  in  some  cases  it  being  laid  down 
that  there  must  be  a  regular  indictment  and  conviction  before  the  court 
•will  proceed  to  strike  him  from  the  roll ;  in  others,  such  previous  con- 
viction being  deemed  unnecessary.^ 

From  this  review  of  the  authorities  in  this  country  it  is  apparent,  that 
whilst  it  may  be  the  general  rule  that  a  previous  conviction  should  be 
had  before  striking  an  attorney  off  the  roll  for  an  indictable  offence, 
committed  by  him  when  not  acting  in  his  character  of  an  attorney,  j'et 
that  the  rule  is  not  an  inflexible  one.  Cases  may  occur  in  which  such 
a  requirement  would  result  in  allowing  persons  to  practise  as  attorneys 
who  ought,  on  every  ground  of  propriety  and  respect  for  the  adminis- 
tration of  the  law,  to  be  excluded  from  such  practice.  A  criminal 
prosecution  may  fail  by  the  absence  of  a  witness,  or  b}'  reason  of  a  flaw 
in  the  indictment,  or  some  irregularit}'  in  the  proceedings  ;  and  in  such 
cases,  even  in  England,  the  proceeding  to  strike  from  the  roll  may  be 
had.  But  other  causes  may  operate  to  shield  a  gross  offender  from  a 
conviction  of  crime,  however  clear  and  notorious  his  guilt  maj'  be,  — a 
prevailing  popular  excitement ;  powerful  influences  brought  to  bear  on 
the  public  mind,  or  on  the  mind  of  the  jury  ;  and  many  other  causes  which 
might  be  suggested ;  and  3"et,  all  the  time,  the  offender  ma}^  be  so 
covered  with  guilt,  perhaps  glorying  in  it,  that  it  would  be  a  disgrace 
to  the  court  to  be  obliged  to  receive  him  as  one  of  its  officers,  clothed 
with  all  the  prestige  of  its  confidence  and  authority.  It  seems  to  us  that 
the  circumstances  of  the  case,  and  not  an}'  iron  rule  on  the  subject, 
must  determine  whether,  and  when,  it  is  proper  to  dispense  with  a  pre- 
liminary conviction.  If,  as  Lord  Chief  Justice  Cockburn  said,  the 
evidence  is  conflicting,  and  any  doubt  of  the  party's  guilt  exists,  no 
court  would  assume  to  proceed  summarily,  but  would  leave  the  case  to 

1  Here  the  learned  judge  examined  the  following  American  cases.  Anon.,  2  Halst. 
162  ;  State  v.  Foreman,  3  Mo.  412;  Ex  parte  Fisher,  6  Leigh,  619 ;  State  v.  Chapman, 
11  Oh.  430;  Beene  v.  State,  22  Ark.  149;  Ex  parte  Steinman,  95  Pa.  220;  Ex  parte 
Burr,  1  Wheel.  503;  2  Cranch  C.  C.  379;  Fields  v.  State,  Mart.  &  Y.  168;  Smith  ». 
?;.  State,  1  Yerg.  228;  Perry  i>.  State,  3  Greene  (la.),  550;  In  re  Percy,  36  N.  Y.  651  ; 
Penobscot  Bar  v.  Kimball,  64  Me.  140  ;  Delano's  Case,  58  N.  H.  5  ;  Re  Wool,  36  Mich. 
299  ;  Ex  parte  Walls,  64  Ind.  461 ;  People  v.  Appleton,  15  Chic.  Leg.  News,  241.  — Ed. 


I 


CHAP.  XX.]  EX  PARTE   WALL.  993 

be  determined  by  a  jury.  But  whore  the  case  is  clear,  and  the  dcraal  b 
evasive,  there  is  no  fixed  rule  of  law  to  prevcut  the  court  from  oxerl 
ing  Its  authority.  ^•».«.rcw. 

The  provisions  of  the  Constitution,  wh.ch  <lcclare  that  no  pcr«on 
shall  be  held  to  answer  for  a  capital  or  otherwise  inHunous  eriuu.  u  I  s " 
on  a  presentment  or  indictment  of  a  grand  jury,  and  tiua  the  trial  o  ul 
crimes,  except  in  cases  of  impeachment,  shall  he  by  jurv,  have  no  rcia 
tion  to  the  subject  in  hand.  As  held  by  the  Supreme^UV  o  Temu^:; 
m  Helds  ..  rhe  State  and  the  same  view  is  expressed  ,n  other  can,.) 
the  constitutional  privilege  of  trial  by  jury  for  crimes  does  not  applv  U 
prevent  the  courts  from  punishing  its  o/licers  for  contc-mpt,  or  fro.n 
removing  them  in  proper  cases.  Removal  fro.n  oir.ce  for  an  indictable 
offence  is  no  bar  to  an  indictment.  The  proceeding  is  in  iu  nature 
civil,  and  collateral  to  any  criminal  prosecution  by  indictmenU  The 
proceeding  is  not  for  the  purpose  of  punishment,  but  for  the  ..m-pose  of 
preserving  the  courts  of  justice  from  the  ollicial  ministration  of  persons 
unfit  to  practise  in  them.  Undoubtedly,  the  power  is  one  that  ou-l.t 
always  to  be  exercised  with  great  caution  ;  and  ought  never  to  he  cx^er- 
cised  except  in  clear  cases  of  misconduct,  which  alTect  the  standin-and 
character  of  the  party  as  an  attorney.  But  when  such  a  case  is  shown 
to  exist,  the  courts  ought  not  to  hesitate,  from  sympatliy  for  the  indi- 
vidual, to  protect  themselves  from  scandal  and  contempt,  and  the  public 
from  prejudice,  by  removing  grossly  improper  persons  from  participation 
in  the  administration  of  the  laws.  The  power  to  do  this  is  a  rightful 
one  ;  and,  when  exercised  in  proper  cases,  is  no  violation  of  anv  consti- 
tutional provision. 

It  is  contended,  indeed,  that  a  summary  proceeding  against  an  attor- 
ney to  exclude  him  from  the  practice  of  his  profession  on  account  of 
acts  for  which  he  may  be  indicted  and  tried  by  a  jury  is  in  violation  of 
the  Fifth  Amendment  of  the  Constitution,  which  forbids  the  depriving 
of  any  person  of  life,  liberty,  or  property  without  due  i)roccss  of  law. 
But  the  action  of  the  court  in  cases  within  its  jurisdiction  is  due  process 
of  law.  It  is  a  regular  and  lawful  method  of  proceeding,  practised  from 
time  immemorial.  Conceding  that  an  attorney's  calling  or  profession 
is  his  property,  within  the  true  sense  and  meaning  of  the  Constitution, 
it  is  certain  that  in  many  cases,  at  least,  he  may  be  excluded  from  the 
pursuit  of  it  by  the  summary  action  of  tlie  court  of  which  he  is  nn 
attorne}'.  The  extent  of  the  jurisdiction  is  a  subject  of  fair  judicial 
consideration.  That  it  embraces  many  cases  in  which  the  offence  is 
indictable  is  established  by  an  overwhelming  weight  of  authority. 
This  being  so,  the  cjuestion  whether  a  particular  class  of  cases  of  mis- 
conduct is  within  its  scope,  cannot  involve  any  constitutional  princii)le. 

It  is  a  mistaken  idea  that  due  process  of  law  requires  a  plenary  suit 
and  a  trial  by  jury,  in  all  cases  where  property  or  personal  rightjj  are 
involved.  The  important  right  of  personal  liberty  is  genendly  dctrr- 
mined  by  a  single  judge,  on  a  writ  of  h'tbeas  corpus,  using  aflidavitsor 
depositions  for  proofs,  where  facts  are  to  be  established.     Asscssmcnla 


89-i  EX  PARTE  ^yALL.  [chap.  XX. 

for  damages  and  benefits  occasioned  by  public  improvements  are  usually 
made  by  commissioners  in  a  summary  way.  Conflicting  claims  of  credi- 
tors, amounting  to  thousands  of  dollars,  are  often  settled  by  the  courts 
on  affidavits  or  depositions  alone.  And  the  courts  of  chancery,  bank- 
ruptcy, probate,  and  admiralty  administer  immense  fields  of  jurisdic- 
tion without  trial  by  jury.  In  all  cases,  that  kind  of  procedure  is  due 
process  of  law  which  is  suitable  and  proper  to  the  nature  of  the  case, 
and  sanctioned  by  the  estabhshed  customs  and  usages  of  the  courts. 
"Perhaps  no  definition,"  says  Judge  Cooley,  "is  more  often  quoted 
than  that  given  by  Mr.  Webster  in  the  Dartmouth  College  case :  '  By 
the  law  of  the  land  is  most  clearly  intended  the  general  law ;  a  law 
which  hears  before  it  condemns  ;  which  proceeds  upon  inquiry,  and  ren- 
ders judgment  only  after  trial.  The  meaning  is  that  every  citizen  shall 
hold  his  life,  liberty,  property,  and  immunities,  under  the  protection  of 
the  general  rules  which  govern  society.'  "     Cooley's  Const.  Lim.  353. 

The  question,  what  constitutes  due  process  of  law  within  the  meaning 
of  the  Constitution,  was  much  considered  by  this  court  in  Davidson  v. 
New  Orleans,  96  U.  S.  97  ;  and  Mr.  Justice  Miller,  speaking  for  the 
court,  said  :  "  It  is  not  possible  to  hold  that  a  party  has,  without  due 
process  of  law,  been  deprived  of  his  property,  when,  as  regards  the 
issues  affecting  it,  he  has,  by  the  laws  of  the  State,  a  fair  trial  in  a  court 
of  justice,  according  to  the  modes  of  proceeding  applicable  to  such  a 
case."  And,  referring  to  Murray's  Lessee  v.  Hoboken  Land  and  Im- 
provement Co.,  18  How.  272,  he  said  :  "  An  exhaustive  judicial  inquiry 
into  the  meaning  of  the  words,  '  due  process  of  law,'  as  found  in  the 
Fifth  Amendment,  resulted  in  the  unanimous  decision  of  this  court, 
that  they  do  not  necessarily  imply  a  regular  proceeding  in  a  court  of 
justice,  or  after  the  manner  of  such  courts." 

We  have  seen  that,  in  the  present  case,  due  notice  was  given  to  the 
petitioner,  and  a  trial  and  hearing  was  had  before  the  court,  in  the 
manner  in  which  proceedings  against  attorneys,  when  the  question  is 
whether  they  should  be  struck  off  the  roll,  are  always  conducted. 

We  think  that  the  court  below  did  not  exceed  its  powers  in  taking 
cognizance  of  the  case  in  a  summary  way,  and  that  no  such  irregularity 
occurred  in  the  proceeding  as  to  require  this  court  to  interpose  by  the 
writ  of  mandamus.     The  writ  of  mandamus  is  therefore, 

JRefused.^ 

Mr.  Justice  Field  dissented. 

1  See  In  re  Gale,  75  N.  Y.  526.  —  Ed. 


CHAP.  XXI.  1  EEGIKA  V.   ANDLUbON. 


89d 


CHAPTER  XXI. 
TERRITORIAL  JURISDICTION. 

REGINA  V.   ANDERSON. 

Crown  Casb  Reserved.     18G8. 

{Reported  11  Cox  V.  C.  198.] 

Case  reserved  by  Byles,  J.,  at  the  October  Sessions  ol  the  Ceutrril 
Criminal  Court,  18G8,  for  the  opinion  of  this  court. 

James  Anderson,  an  American  citizen,  was  indicted  for  niunKr  on 
board  a  vessel,  belonging  to  the  port  of  Yarmouth  in  Nova  Scotia. 
She  was  registered  in  London,  and  was  sailing  under  the  British  Hag. 

At  the  time  of  the  offence  committed  the  vessel  was  in  the  river 
Garonne,  within  the  boundaries  of  the  French  empire,  on  her  w.iy  up 
to  Bordeaux,  which  city  is  by  the  course  of  the  river  about  ninety  nnles 
from  the  open  sea.  The  vessel  liad  proceeded  about  half-way  up  the 
river,  and  was  at  the  time  of  the  otfence  about  300  yards  from  the 
nearest  shore,  the  river  at  that  place  being  about  half  a  mile  wide. 

The  tide  flows  up  to  the  place  and  beyond  it. 

No  evidence  was  given  whether  the  place  was  or  was  not  within  the 
limits  of  the  port  of  Bordeaux. 

It  was  objected  for  the  prisoner  that  the  offence  having  been  com- 
mitted within  the  empire  of  France,  the  vessel  being  a  colonial  vessel, 
and  the  prisoner  an  American  citizen,  the  court  had  no  jurisdiction  to 
tr}'  him. 

I  expressed  an  opinion  unfavorable  to  the  objection,  but  agreed  to 
grant  a  case  for  the  opinion  of  this  Court. 

The  prisoner  was  convicted  of  manslaughter. 

J.    BaRN.VUO    Ihl.F.S 

BoviLL,  C.  J.*  There  is  no  doubt  that  the  place  where  the  otn-nco 
was  committed  was  within  the  territory  of  France,  and  that  the  pri- 
oner  was  therefore  subject  to  the  laws  of  France,  which  the  local  autho- 
rities of  that  realm  might  have  enforced  if  so  minded ;  but  at  tiie  .sauic 
time,  in  point  of  law,  the  offence  was  also  committed  within  British 
territory,  for  the  prisoner  was  a  seaman  on  board  a  merchant  v. 
which,  as  to  her  crew  and  master,  must  be  taken  to  have  been  u: 
time  under  the  protection  of  the  British  flag,  and,  therefore,  also  amen- 
able to  the  provisions  of  the  British  law.     It  is  true  that  the  prisoner 

1  Arguments  of  counsel  and  the  concurring  opiuious  of  CuAX.stLL,  B.,  au>i  Ulack- 
BUEN  and  Lush,  JJ.,  are  omitted. 


89 6  REGINA   V.    ANDERSON.  [CHAP.  XXL 

was  an  American  citizen,  but  he  bad  with  bis  own  consent  embarked 
on  board  a  British  vessel  as  one  of  the  crew.  Although  the  prisoner 
was  subject  to  the  American  jurisprudence  as  an  American  citizen,  and 
to  the  law  of  France  as  having  committed  an  offence  within  the  terri- 
tory of  France,  3'et  he  must  also  be  considered  as  subject  to  the  juris- 
diction of  British  law,  which  extends  to  the  protection  of  British 
vessels,  though  in  ports  belonging  to  another  country.  From  the  pas- 
sage in  the  treatise  of  Ortolan,  already  quoted,  it  appears  that,  with 
regard  to  offences  committed  on  board  of  foreign  vessels  within  the 
French  territory,  the  French  nation  will  not  assert  their  police  law 
unless  invoked  by  the  master  of  the  vessel,  or  unless  the  offence  leads 
to  a  disturbance  of  the  peace  of  the  port ;  and  several  instances  where 
that  course  was  adopted  are  mentioned.  Among  these  are  two  cases 
where  offences  were  committed  on  board  American  vessels  —  one  at  the 
port  of  Antwerp,  and  the  other  at  Marseilles  —  and  where,  on  the  local 
authorities  interfering,  the  American  court  claimed  exclusive  jurisdic- 
tion. As  far  as  America  herself  is  concerned,  it  is  clear  that  she,  by 
the  statutes  of  the  23rd  of  March,  1825,  has  made  regulations  for  per- 
sons on  board  her  vessels  in  foreign  parts,  and  we  have  adopted  the 
same  course  of  legislation.  Our  vessels  must  be  subject  to  the  laws  of 
the  nation  at  any  of  whose  ports  they  may  be,  and  also  to  the  laws  of 
our  countr}',  to  which  they  belong.  As  to  our  vessels  when  going  to 
foreign  parts  we  have  the  right,  if  we  are  not  bound,  to  make  regula- 
tions. America  has  set  us  a  strong  example  that  we  have  the  right  to 
do  so.  In  the  present  case,  if  it  were  necessary  to  decide  the  question 
on  the  17  &  18  Vict.  c.  104,  I  should  have  no  hesitation  in  saying  that 
we  now  not  only  legislate  for  British  subjects  on  board  of  British  ves- 
sels, but  also  for  all  those  who  form  the  crews  thereof,  and  that  there 
is  no  difficulty  in  so  construing  the  statute  ;  but  it  is  not  necessar}'  to 
decide  that  point  now.  Independentl}-  of  that  statute,  the  general  law 
is  sufficient  to  determine  this  case.  Here  the  offence  was  committed 
on  board  a  British  vessel  by  one  of  the  crew,  and  it  makes  no  difference 
whether  the  vessel  was  within  a  foreign  port  or  not.  If  the  offence  had 
been  committed  on  the  high  seas  it  is  clear  that  it  would  have  been 
within  the  jurisdiction  of  the  Admiralty,  and  the  Central  Criminal 
Court  has  now  the  same  extent  of  jurisdiction.  Does  it  make  any 
difference  because  the  vessel  was  in  the  river  Garonne  half-way 
between  the  sea  and  the  head  of  the  river?  The  place  where  the 
offence  was  committed  was  in  a  navigable  part  of  the  river  below 
bridge,  and  where  the  tide  ebbs  and  flows,  and  great  ships  do  lie  and 
hover.  An  offence  committed  at  such  a  place,  according  to  the  author- 
ities, is  within  the  Admiralty  jurisdiction,  and  it  is  the  same  as  if  the 
offence  had  been  committed  on  the  high  seas.  On  the  whole  I  come  to 
the  conclusion  that  the  prisoner  was  amenable  to  the  British  law,  and 
that  the  conviction  was  right. 

Byles,  J.     I  am  of  the  same  opinion.     I  adhere  to  the  opinion  that 
I  expressed  at  the  trial.     A  British  ship  is,  for  the  purposes  of  this 


CHAP.  XXI.]  REGINA   V.   KEYN.  ggl 

question,  like  a  floating  island ;  and,  when  a  orimo  i,  commitlca  on 
board  a  British  ship,  it  is  within  the  jurisdictio,.  of  the  Admiraltv 
Court,  and  therefore  of  the  Central  Cri,ni,Kil  Court,  and  the  offt-nd.r  i. 
as  amenable  to  British  law  as  if  he  had  stood  on  the  Isle  of  Wi-ht  uud 
committed  the  crime.  Two  English  and  two  American  case,'' deride 
that  a  crime  committed  on  board  a  British  vessel  iu  a  river  Ilk.-  the  one 
in  question,  where  there  is  the  flux  and  reflux  of  the  tide,  nn.l  wherein 
great  ships  do  hover,  is  within  the  jurisdiction  of  the  Adinirnlty  Court  • 
and  that  is  also  the  opinion  expressed  in  Kent's  Commeutnries  The 
only  effect  of  the  ship  being  within  tlie  ambit  of  French  torritorv  is  that 
there  might  have  been  concurrent  jurisdiction  had  the  French "clnimcd 
it.  I  give  no  opinion  on  the  question  whether  the  case  comes  within 
the  enactment  of  the  Merchant  Shippiu"-  Act.* 


REGINA  V.   KEYN. 
Crown  Case  Reserved.     1876. 

[Reported  2  Ex.  Z).  63 ;  13  Cor  C.  C.  403.] 

CoCKBURN,  C.  J.  The  defendant  has  been  convicted  of  the  oflfence 
of  manslaughter  on  the  high  seas,  on  a  trial  had  at  the  Central  Crim- 
inal Court,  under  the  statute  4  &  5  "NVm.  IV.,  c.  30,  s.  22,  which 
empowers  the  judges  sitting  there  to  hear  and  determine  offences 
"committed  on  the  high  seas  and  other  places  within  the  jurisdiction 
of  the  Admiralty  of  England."  The  facts  were  admittedly  such  as  to 
warrant  the  conviction,  if  there  was  jurisdiction  to  try  the  defendant 
as  amenable  to  English  law.  Being  in  command  of  a  steamship,  the 
"  Franconia,"  and  having  occasion  to  pass  the  "  Strathclyde,"  a  Brit- 
ish ship,  the  defendant  brought  his  ship  unnecessarily  close  to  the 
latter,  and  then,  b}'  negligence  in  steering,  ran  into  the  "  Strathclyde  *' 
and  broke  a  hole  in  her,  in  consequence  of  which  she  filled  with 
water  and  sank,  when  the  deceased,  whose  death  the  accused  is  charjred 
with  having  occasioned,  being  on  board  the  "  Strathclyde,"  was 
drowned. 

That  the  negligence  of  which  the  accused  was  thus  guilty,  having 
resulted  in  the  death  of  the  deceased,  amounts  according  to  F.n<.'lish 
law  to  manslaughter  can  admit  of  no  doubt.  The  question  is,  whttlicr 
the  accused  is  amenable  to  our  law,  and  whether  there  waa  jurisdic- 
tion to  try  him? 

The  legality  of  the  conviction  is  contested,  on  the  ground  that  the 
accused  is  a  foreigner  ;  that  the  "  Franconia,"  the  ship  he  commanded, 
was  a  foreign  vessel,  sailing  from  a  foreign  port.  l)ound  on  a  foreign 
voyage;  that  the   alleged   offence  was   committed  on  the  higli  sc.ift. 

»  See  Reg.  v.  Lopez,  7  Cox  C.  C.  431  ;  Keg.  v.  Armstrong.  13  Cox  C  C  1»4.-  En. 

57 


898  BEGINA   V.    KEYN.  [CHAP.  XXI. 

Under  these  circumstances,  it  is  contended  that  the  accused,  though  he 
ma^-  be  amenable  to  the  law  of  his  own  countr}',  is  not  capable  of  being 
tried  and  punished  b}-  the  law  of  England. 

The  facts  on  which  this  defence  is  based  are  not  capable  of  being 
disputed ;  but  a  twofold  answer  is  given  on  the  part  of  the  prosecu- 
tion : —  1st.  That,  although  the  occurrence  on  which  the  charge  is 
founded  took  place  on  the  high  seas  in  this  sense,  that  the  place  in 
which  it  happened  was  not  within  the  body  of  a  count}-,  it  occurred 
within  three  miles  of  the  English  coast ;  that,  by  the  law  of  nations, 
the  sea,  for  a  space  of  three  miles  from  the  coast,  is  part  of  the  ter- 
ritory of  the  country  to  which  the  coast  belongs ;  that,  consequently, 
the  "  Franconia,"  at  the  time  the  offence  was  committed,  was  in 
English  waters,  and  those  on  board  were  therefore  subject  to  English 
law.  2ndl3'.  That,  although  the  negligence  of  which  the  accused  was 
guilty  occurred  on  board  a  foreign  vessel,  the  death  occasioned  by  such 
negligence  took  place  on  board  a  British  vessel ;  and  that,  as  a  British 
vessel  is  in  point  of  law  to  be  considered  British  territory,  the  offence 
having  been  consummated  by  the  death  of  the  deceased  in  a  British 
ship,  must  be  considered  as  having  been  committed  on  British  territory. 

I  reserve  for  future  consideration  the  arguments  thus  advanced  on 
the  part  of  the  Crown,  and  proceed,  in  the  first  instance,  to  consider 
the  general  question,  —  how  far,  independent!}'  of  them,  the  accused, 
having  been  at  the  time  the  offence  was  committed  a  foreign  subject, 
in  a  foreign  ship,  on  a  foreign  voyage,  on  the  high  seas,  is  amenable 
to  the  law  of  England. 

Now,  no  proposition  of  law  can  be  more  incontestable  or  more  uni- 
versally admitted  than  that,  according  to  the  general  law  of  nations,  a 
foreigner,  though  criminally  responsible  to  the  law  of  a  nation  not  his 
own  for  acts  done  by  him  while  within  the  limits  of  its  territory,  cannot 
be  made  responsible  to  its  law  for  acts  done  beyond  such  limits :  — 

"  Leges  cujusque  imperii,"  says  Huber  de  Conflictu  Legum,  citing 
Dig.  de  jurisdictione,  1.  ult.,  "  vim  habent  intra  terminos  ejusdem  rei- 
publicae,  omnesque  ei  subjectos  obligant,  nee  ultra."  '•  Extra  territo- 
riura  jus  dicenti  impune  non  pareUir  "  is  an  old  and  well-established 
maxim.  ''  No  sovereignty,"  says  Story  (Conflict  of  Laws,  s.  539), 
"  can  extend  its  process  beyond  its  own  territorial  limits,  to  subject 
either  persons  or  property  to  its  judicial  decisions.  Every  exertion  of 
authority  of  this  sort  beyond  this  hrait  is  a  mere  nullity,  and  incap- 
able of  binding  such  persons  or  property  in  any  other  tribunals."  "  The 
power  of  this  country,"  says  Dr.  Lushington  in  the  case  of  The  Zoll- 
verein,  1  Sw.  Adm.  96,  "is  to  legislate  for  its  subjects  all  the  world 
over,  and  as  to  foreigners  within  its  jurisdiction,  but  no  further." 

This  rule  must,  however,  be  taken  subject  to  this  qualification,  namely, 
that  if  the  legislature  of  a  particular  country  should  think  fit  by  express 
enactment  to  render  foreigners  subject  to  its  law  with  reference  to 
offences  committed  beyond  the  limits  of  its  territory,  it  would  be  incura- 


CHAP.  XXL]  REGINA   V.   KEYN.  899 

bent  on  the  courts  of  such  country  to  give  effect  to  such  enactuaM.t 
caving  It  to  the  state  to  settle  the  question  of  international  law  wiu; 
the  governments  of  other  nations.  The  question  of  express  l..,M.l.aio„ 
will  be  dealt  wUh  hereafter.  For  the  present  I  auwh.aUn./rvith  " 
subject  with  reference  to  the  general  law  alone. 

To  the  general  rule  to  which  I  have  referred  there  is  one  excel. 
tion,  -  that  of  a  foreigner  on  board  the  ship  of  another  nation  H  ,t 
the  exception  is  apparent  rather  than  real ;  for  by  the  received  'law  of 
every  nation  a  ship  on  the  high  seas  carries  its  nationality  and  the  law 
of  its  own  nation  with  it,  and  in  this  respect  has  been"  likoiud  to  u 
floating  portion  of  the  national  territory.  All  on  boar.l  then.f.,re 
whether  subjects  or  foreigners,  are  bound  to  obey  the  law  of  the  coun- 
try to  which  the  ship  belongs,  as  though  they  were  actually  on  its  ter- 
ritory on  land,  and  are  liable  to  the  penalties  of  that  law  for  any  offence 
committed  against  it. 

But  they  are  liable  to  that  law  alone.  On  board  a  foreign  ship  on 
the  high  seas,  the  foreigner  is  liable  to  the  law  of  the  foreign'^ship  onlv. 
It  is  only  when  a  foreign  ship  comes  into  the  ports  or  waters  of  another 
state  that  the  ship  and  those  on  board  become  subject  to  the  local  law. 
These  are  the  established  rules  of  the  law  of  nations.  They  have  been 
adopted  into  our  own  municipal  law,  and  must  be  taken  to  form  part 
of  it. 

According  to  the  general  law,  therefore,  a  foreigner  who  is  not  resid- 
ing permanently  or  temporarily  in  British  territory,  or  on  board  a 
British  ship,  cannot  be  held  responsible  for  an  infraction  of  the  law  of 
this  country.  Unless,  therefore,  the  accused,  Keyn,  at  the  time  the 
offence  of  which  he  has  been  convicted  was  committed,  was  on  British 
territory  or  on  board  a  British  ship,  he  could  not  i)e  properly  l)rouglit 
to  trial  under  English  law,  in  the  absence  of  express  legislation.* 

These  decisions  are  conclusive  in  favor  of  the  accused  in  the  pres- 
ent case,  unless  the  contention,  on  the  part  of  the  Crown,  either  that 
the  place  at  which  the  occurrence,  out  of  which  the  present  inquiry  has 
arisen,  was,  though  on  the  high  seas,  yet  within  British  waters,  by 
reason  of  its  having  been  within  three  miles  of  the  English  shore ;  or 
that,  the  death  of  the  deceased  having  occurred  in  a  British  ship,  the 
offence  must  be  taken  to  have  been  there  committed,  so  as  in  either 
case  to  give  jurisdiction  to  the  Admiralty,  or  the  courts  substituted  for 
it,  shall  prevail.  These  questions  it  becomes,  therefore,  necessary  can- 
fully  to  consider. 

On  entering  on  the  first,  it  is  material  to  have  a  clear  conception  of 
what  the  matter  in  controversy  is.  The  jurisdiction  of  the  admiral, 
however  largeh'  asserted  in  theorj'  in  ancient  times,  being  abandoned 
as  untenable,  it  becomes  necessar}'  for  the  counsel  for  the  Crown  to 
have  recourse  to  a  doctrine  of  comparatively  modern  growth,  namely, 
that  a  belt  of  sea,  to  a  distance  of  three  miles  from  the  coast,  thouj:h 

'  The  learned  Chief  Justice  then  examined  the  anthoritics,  which  in  hii  opinJoo 
denied  jurisdiction  to  the  Admiral  iu  a  case  of  the  pre^cut  sort.  —  Ed. 


900 


REGINA  V.   KEYN. 


[CHAP.  XXI. 


SO  far  a  portion  of  the  high  seas  as  to  be  still  within  the  jurisdiction  of 
the  admiral,  is  part  of  the  territory  of  the  realm,  so  as  to  make  a 
foreigner  in  a  foreign  ship,  within  such  belt,  though  on  a  voyage  to  a 
foreign  port,  subject  to  our  law,  which  it  is  clear  he  would  not  be  on  the 
high^sea  beyond  such  limit.  It  is  necessary  to  keep  the  old  assertion 
of^jurisdiction  and  that  of  to-day  essentially  distinct,  and  it  should  be 
borne  in  mind  that  it  is  because  all  proof  of  the  actual  exercise  of  any 
jnrisdiction  by  the  admiral  over  foreigners  in  the  narrow  seas  totally 
fails,  that  it  becomes  necessary  to  give  to  the  three-mile  zone  the  char- 
acter of  territory  in  order  to  make  good  the  assertion  of  jurisdiction  over 
the  foreigner  therein. 

Now,  it  may  be  asserted  without  fear  of  contradiction  that  the  posi- 
tion that  the  sea  within  a  belt  or  zone  of  three  miles  from  the  shore, 
as  distinguished  from  the  rest  of  the  open  sea,  forms  part  of  the  realm 
or  territory  of  the  Crown  is  a  doctrine  unknown  to  the  ancient  law  of 
England,  and  w:hich  has  never  yet  received  the  sanction  of  an  English 
criminal  court  of  justice.^ 

From  the  review  of  these  authorities  we  arrive  at  the  following  re- 
sults. There  can  be  no  doubt  that  the  suggestion  of  Bynkershoek, 
that  the  sea  surrounding  the  coast  to  the  extent  of  cannon-range  should 
be  treated  as  belonging  to  the  state  owning  the  coast,  has,  with  but  very 
few  exceptions,  been  accepted  and  adopted  by  the  publicists  who  have 
followed  him  during  the  last  two  centuries.  But  it  is  equally  clear  that, 
in  the  practical  application  of  the  rule,  in  respect  of  the  particular  of 
distance,  as  also  in  the  still  more  essential  particular  of  the  character 
and  degree  of  sovereignty  and  dominion  to  be  exercised,  great  difference 
of  opinion  and  uncertainty  have  prevailed,  and  still  continue  to  exist. 

As  regards  distance,  while  the  majority  of  authors  have  adhered  to 
the  three-mile  zone,  others,  like  M.  Ortolan  and  Mr.  Halleck,  applying 
with  greater  consistency  the  principle  on  which  the  whole  doctrine  rests, 
insist  on  extending  the  distance  to  the  modern  range  of  cannon,  —  in 
other  words  doubling  it.  This  difference  of  opinion  may  be  of  little 
practical  importance  in  the  present  instance,  inasmuch  as  the  place  at 
which  the  offence  occurred  was  within  the  lesser  distance  ;  but  it  is, 
nevertheless,  not  immaterial  as  showing  how  unsettled  this  doctrine  still 
is.  The  question  of  sovereignty,  on  the  other  hand,  is  all-important. 
And  here  we  have  every  shade  of  opinion. 

One  set  of  writers,  as,  for  instance,  M.  Hautefeuille,  ascribe  to  the 
state  territorial  property  and  sovereignty  over  the  three  miles  of  sea, 
to  the  extent  of  the  right  of  excluding  the  ships  of  all  other  nations, 
even  for  the  purpose  of  passage,  —  a  doctrine  flowing  immediately  from 
the  principle  of  territorial  property,  but  which  is  too  monstrous  to  be 
admitted.  Another  set  concede  territorial  property  and  sovereignty, 
but  make  it  subject  to  the  right  of  other  nations  to  use  these  waters  for 
the   purpose  of   navigation.     Others  again,  like  M.  Ortolan  and  M. 

1  The  learned  Chief  .Justice  then  examined  the  opinions  of  writers  upon  Interna 
tlonal  Law  as  to  territorinl  jnrisdiction  over  the  littoral  seas.  —  Ed. 


CHAP.  XXI.]  REGINA   V.    KKYN. 


901 


Calvo,  deny  any  right  of  territorial  property,  In.t  concede  -jurUUio 
tion;"  by  which  I  understauil  them  to  mean  the  power  of  applvinL'  the 
law,  applicable  to  persons  on  the  land,  to  all  who  are  within  thJ  Urrilo- 
rial  water,  and  the  power  of  legislutin-  in  rcspt-ct  of  it,  so  as  to  bind 
every  one  who  comes  within  the  jurisdiction,  whether  Kubjecl*  or 
foreigners.  Some,  like  M.  Ortolan,  would  confine  this  jurindhtiori  to 
purposes  of  '' safety  and  police,"  —  by  which  I  should  be  dihp<,M^l  to 
understand  measures  for  the  protection  of  the  tcrrit^jry,  and  fur  U»c 
regulation  of  the  navigation,  and  the  use  of  h:ir])ors  and  roadhU-nU«, 
and  the  maintenance  of  order  among  the  shipping  therein,  rather  than 
the  general  application  of  the  criminal  law. 

Other  authors  — for  instance,  Mr.  Manning  — would  restrict  the 
jurisdiction  to  certain  specified  purposes  in  which  the  local  state  hari 
an  immediate  interest,  namely,  the  protection  of  its  revenue  and  fish- 
eries, the  exacting  of  harbor  and  light  dues,  and  the  protection  of  iU 
coasts  in  time  of  war. 

Some  of  these  authors — for  instance,  Trofcssor  Bluntschli  — make 
a  most  important  distinction  between  a  commoiant  and  a  passing  ship. 
According  to  this  author,  while  the  commorant  ship  is  su])jcct  to  the 
general  law  of  the  local  state,  the  passing  ship  is  liable  to  the  Imal 
jurisdiction  only  in  matters  of  "military  and  police  regulations,  made 
for  the  safety  of  the  territory  and  population  of  the  coast."  None  of 
these  writers,  it  should  be  noted,  discuss  the  question,  or  go  the  length 
of  asserting  that  a  foreigner  in  a  foreign  ship,  using  tlie  waters  in 
question  for  the  purpose  of  navigation  solely,  on  its  way  to  another 
countr}',  is  liable  to  the  criminal  law  of  the  adjoining  country  fur  an 
offence  committed  on  board. 

Now,  when  it  is  remembered  that  it  is  mainly  on  the  statemcnt.s  and 
authorit}'  of  these  writers,  and  to  opinions  founded  u|)on  them,  that  wo 
are  called  upon  to  hold  that  foreigners  on  the  so-called  territorial  sea 
are  subject  to  the  general  law  of  this  country,  the  discrepancy  of  opin- 
ion which  I  have  been  pointing  out  becomes  very  material.  Looking 
to  this,  we  may  properly  ask  those  who  contend  for  the  application  of 
the  existing  law  to  the  littoral  sea  independently  of  legislation,  to  toll 
us  the  extent  to  which  we  are  to  go  in  applying  it.  Are  wo  to  limit 
it  to  three  miles,  or  to  extend  it  to  six?  Are  we  to  treat  the  whole  l)ody 
of  the  criminal  law  as  applicable  to  it,  or  only  so  much  ns  relates  to 
"  police  and  safety"?  Or  are  we  to  limit  it,  as  one  of  these  authors 
proposes,  to  the  protection  of  fisheries  and  customs,  the  exacting  of 
harbor  and  light  dues,  and  the  protection  of  our  coasts  in  time  of 
war?  Which  of  these  writers  are  we  to  follow?  "What  is  there  in 
these  conflicting  views  to  guide  us,  in  the  total  absence  of  precedent  or 
legal  sanction,  as  to  the  extent  to  which  we  may  subject  foreigners  to 
our  law?  What  is  there  in  them  wliich  authorizes  ns  to  assume  not 
only  that  Parliament  can  of  right  deal  with  the  three-mile  zone  &s 
forming  part  of  our  territory,  but  also  that,  by  the  more  assent  of  other 
nations,  the  sea  to  this  extent  has  become  so  completely  a  p.irt  of  our 


902  REGINA  V.    KEYN.  [cHAP.  XXI. 

territory  as  to  be  subject,  without  legislation,  to  the  whole  T)ocly  of  our 
existing  law,  civil  and  criminal? 

But  it  is  said  that,  although  the  writers  on  international  law  are 
disagreed  on  so  many  essential  points,  the}'  are  all  agreed  as  to  the 
power  of  a  littoral  state  to  deal  with  the  three-mile  zone  as  subject  to 
its  dominion,  and  that  consequently  we  may  treat  it  as  subject  to  our 
law.  But  this  reasoning  strikes  me  as  unsatisfactory  ;  for  what  does 
this  unanimity  in  the  general  avail  us  when  we  come  to  the  practical 
application  of  the  law  in  the  particular  instance,  if  we  are  left  wholl}-  in 
the  dark  as  to  the  degree  to  which  the  law  can  be  legitimately  enforced? 
This  unanimit}'  of  opinion  that  the  littoral  sea  is,  at  all  events  for 
some  purposes,  subject  to  the  dominion  of  the  local  state,  ma}'  go  far  to 
show  that,  by  the  concurrence  of  other  nations,  such  a  state  may  deal 
with  these  waters  as  subject  to  its  legislation.  But  it  wholly  fails  to 
show  that,  in  the  absence  of  such  legislation,  the  ordinary-  law  of  the 
local  state  will  extend  over  the  waters  in  question,  —  which  is  the  point 
which  we  have  to  determine. 

Not  altogether  uninfluenced,  perhaps,  by  the  diversity  of  opinion  to 
which  1  have  called  attention,  the  argument  in  support  of  the  prosecu- 
tion presents  itself — not  without  some  sacrifice  of  consistency  —  in 
more  than  one  shape.  At  one  time  it  is  asserted  that,  for  the  space  of 
three  miles,  not  onl}'  the  sea  itself,  but  the  bed  on  which  it  rests,  forms 
part  of  the  territorj'  or  realm  of  the  countrj-  owning  the  coast,  as  though 
it  were  so  much  land ;  so  that  the  right  of  passage  and  anchorage 
might  be  of  right  denied  to  the  ships  of  other  nations.  At  another  time 
it  is  said  that,  while  the  right  is  of  a  territorial  character,  it  is  subject 
to  a  right  of  passage  by  the  ships  of  other  nations.  Sometimes  the 
sovereignty  is  asserted,  not  as  based  on  territorial  right,  but  simply  as 
attaching  to  the  sea,  over  which  it  is  contended  that  the  nation  owning 
the  coast  may  extend  its  law  to  the  foreigner  navigating  within  it. 

To  those  who  assert  that,  to  the  extent  of  three  miles  from  the  coast, 
the  sea  forms  part  of  the  realm  of  England,  the  question  may  well  be 
put,  when  did  it  become  so?  Was  it  so  from  the  beginning?  It  cer- 
tainly was  not  deemed  to  be  so  as  to  a  three-mile  zone,  any  more  than 
as  to  the  rest  of  the  high  seas,  at  the  time  the  statutes  of  Richard  II. 
were  passed.  For  in  those  statutes  a  clear  distinction  is  made  between 
the  realm  and  the  sea,  as  also  between  the  bodies  of  counties  and  the 
sea ;  the  jurisdiction  of  the  admiral  being  (subject  to  the  exception 
already  stated  as  to  murder  and  mayhem)  confined  strictl}'  to  the  latter, 
and  its  exercise  "within  the  realm"  prohibited  in  terras.  The  lan- 
guage of  the  first  of  these  statutes  is  especially  remarkable :  — 

"The  admirals  and  their  deputies  shall  not  meddle  from  henceforth 
with  anything  done  within  the  realm  of  England,  but  only  with  things 
done  upon  the  sea." 

It  is  impossible  not  to  be  struck  by  the  distinction  here  taken  between 
the  realm  of  England  and  the  sea ;  or,  when  the  two  statutes  are  taken 


CHAP.  XXI.]  KEGIxNA    V.    KKYN. 


003 


together,  not  to  see  that  the  term  "  realm,"  used  in  tia-  Hrht  staiulo, 
and  "  bodies  of  counties,"  the  term  used  in  the  second  sUiiuU-,  im-an 
one  and  the  same  tiling.  In  these  statutes  the  Juritulicti.in  of  the 
admiral  is  restricted  to  the  high  seas,  and,  in  re8|K-{.t  of  murder  and 
mayhem,  to  the  great  rivers  holow  the  bridges,  while  whatovcr  Ik  within 
the  reahu,  in  other  words,  within  the  body  of  a  county,  is  left  within 
the  domain  of  the  common  law.  But  there  is  no  distinction  taken  »x«- 
tween  one  part  of  the  high  sea  and  another.  The  three-mile  zone  is 
no  more  dealt  with  as  within  the  realm  than  the  seas  at  large.  The 
notion  of  a  three-mile  zone  was  in  those  days  in  the  womb  of  lime. 
Wiieu  its  origin  is  traced,  it  is  found  to  be  of  comparatively  mo«lern 
growth.  The  first  mention  of  it  by  any  writer,  or  in  any  court  of  Ihm 
country,  so  far  as  I  am  aware,  was  made  by  LonI  Stowcll,  with  refer- 
ence  to  a  question  of  neutral  rights,  in  the  Gist  year  of  the  present  cen- 
tury, in  the  case  of  The  Twee  Gcbroeders,  3  ('.  Hob.  1C2.  To  thin 
hour  it  has  not,  even  in  theory,  yet  settled  into  certainty.  For  centuries 
before  it  was  thought  of,  the  great  landmarks  of  our  judicial  BVBtem 
had  been  set  fast  —  the  jurisdiction  of  the  common  law  over  the  land 
and  the  inland  waters  contained  within  it,  forming  together  the  realm 
of  England,  that  of  the  admiral  over  English  vessels  on  the  seas,  the 
common  property  or  highwa}'  of  mankind. 

But  I  am  met  by  authorit}",  and,  beyond  question,  ancient  authority, 
may  be  found  in  abundance  for  the  assertion  that  the  bed  of  the  sea  is 
part  of  the  realm  of  England,  part  of  the  territorial  possessions  of  the 
Crown.  Coke,  commenting  on  §  439  of  Littleton,  says,  in  explaining 
the  words  "  out  of  the  realm  "  :  — 

"  If  a  man  be  upon  the  sea  of  England,  he  is  within  the  kingdom  or 
realme  of  England,  and  within  the  ligeance  of  the  King  of  Knglund.  as 
of  his  crowne  of  England.  And  yet  altwn  mare  is  out  of  the  juno- 
diction  of  the  common  law,  and  within  the  jurisdiction  of  the  lord 
adrairall." 

So  Lord  Hale,  no  doubt,  in  his  work  De  Jure  Maris,  speaks  of  the 
narrow  seas,  and  the  soil  thereof,  as  "part  of  the  King's  waste, 
demesnes,  and  dominions,  whether  in  the  body  of  a  county  or  not" 
But  this  was  said,  not  with  reference  to  the  theory  of  the  tliree-railc 
zone,  which  had  not  then  been  thought  of,  but  (following  Selden)  to  the 
wild  notion  of  sovereignty  over  the  whole  of  the  narrow  seas.  Tlii« 
pretension  failing,  the  rest  of  the  doctrine,  as  it  seems  to  me.  falls  with 
it.  Moreover,  Hale  stops  short  of  saying  that  the  bed  of  the  s-  a 
forms  part  of  the  realm  of  England,  as  a  portion  of  it-s  territory.  lie 
speaks  of  it  under  the  vague  terms  of  "  waste,"  "  demesnes."  or 
"  dominions."  He  carefully  distinguishes  between  the  parts  of  the  sea 
which  are  within  the  body  of  a  county  and  those  which  are  not 

It  is  true  that,  in  his  later  work  on  the  Pleas  of  the  Crown.  Lord 
Hale,  .speaking  in  the  chapter  on  Treasons  ^-ol.  i.  |i.  l-VJ  i,  of  «|jat  i*  a 
levying  of  war  against  the  King  -  within  the  realm.-  according  to  the 


90-4  REGINA   V.    KEYN.  [CHAP.  XXI. 

required  averment  in  an  indictment  for  that  offence,  instances  the 
hostile  invasion  of  the  King's  ships  ("  whicli,"  he  observes,  "are  so 
many  royal  castles") ;  and  this,  he  says,  "  is  a  levying  of  war  within 
the  realm  ;  "  the  reason  he  assigns  being  that  "  the  narrow  seas  are  of 
the  ligeauce  of  the  Crown  of  England,"  for  which  he  cites  the  author- 
ity of  Selden.  Here,  again,  we  have  Lord  Hale  blindly  following 
"  Master  Selden,"  in  asserting  that  the  narrow  seas  owe  allegiance  to 
the  Crown  of  England.  A  hostile  attack  by  a  subject  on  a  ship  of  war 
on  the  narrow  seas  would,  I  need  scarcely  say,  be  a  levying  of  war 
against  the  sovereign,  but  it  could  not  now  be  said  to  be  high  treason  as 
having  been  done  within  the  realm. 

Blackstone  (Comm,  vol.  i.  p.  110)  says  that  "  the  main  or  high 
seas  "  (which  he  afterwards  describes  as  beginning  at  low-water  mark) 
"  are  part  of  the  realm  of  England,"  —  here  Mr.  Stephen,  feeling  that 
his  author  was  going  too  far,  interposes  the  words  "  in  one  sense,"  — 
"  for  thereon,"  adds  Blackstone,  "  our  courts  of  Admiralty  have  juris- 
diction ;  but  they  are  not  subject  to  the  common  law."  This  is,  in- 
deed, singular  reasoning.  Instead  of  saying  that,  because  these  seas 
are  part  of  the  realm  of  England,  the  Courts  of  Admiralty  have  juris- 
diction over  them,  the  writer  reverses  the  position,  and  says,  that 
because  the  Admiralty  has  jurisdiction  these  seas  are  part  of  the  realm, 
—  which  certainly  does  not  follow.  If  it  did,  as  the  jurisdiction  of  the 
Admiralty'  extended,  as  regards  British  ships,  wherever  the  sea  rolls, 
the  entire  ocean  might  be  said  to  be  within  the  realm. 

But  to  what,  after  all,  do  these  ancient  authorities  amount?  Of  what 
avail  are  the}'  towards  establishing  that  the  soil  in  the  three-mile  zone 
is  part  of  the  territorial  domain  of  the  Crown?  These  assertions  of 
sovereignty  were  manifestly  based  on  the  doctrine  that  the  narrow  seas 
are  part  of  the  realm  of  England.  But  that  doctrine  is  now  exploded. 
"Who  at  this  day  would  venture  to  affirm  that  the  sovereignty  thus 
asserted  in  those  times  now  exists?  What  English  lawyer  is  there 
who  would  not  shrink  from  maintaining — what  foreign  jurist  who 
would  not  deny  —  what  foreign  government  which  w^ould  not  repel 
such  a  pretension?  I  listened  carefully  to  see  whether  an}'  such  asser- 
tion would  be  made ;  but  none  was  made.  No  one  has  gone  the 
length  of  suggesting,  much  less  of  openly  asserting,  that  the  jurisdic- 
tion still  exists.  It  seems  to  me  to  follow  that  when  the  sovereignt}- 
and  jurisdiction  from  which  the  property  in  the  soil  of  the  sea  was  in- 
ferred is  gone,  the  territorial  property  which  was  suggested  to  be  con- 
sequent upon  it  must  necessaril}'  go  with  it. 

But  we  are  met  here  b}-  a  subtle  and  ingenious  argument.  It  is  said 
that  although  the  doctrine  of  the  criminal  jurisdiction  of  the  admiral 
over  foreigners  on  the  four  seas  has  died  out,  and  can  no  longer  be 
upheld,  yet.  as  now,  by  the  consent  of  other  nations,  sovereignty  over 
this  territorial  sea  is  conceded  to  us,  the  jurisdiction  formerly  asserted 
ma}'  be  revived  and  made  to  attach  to  the  newly-acquired  domain.  I 
am  unable  to  adopt  this  reasoning.    jEc  concessis,  the  jurisdiction  over 


CHAP.  XXI.]  REGINA    V.    KEYX.  qq. 

foreigners  in  foreign  siiips  never  really  existed,  at  all  eveuU,  ii  Ua« 
long  been  dead  and  buned,  even  the  ghost  of  it  Las  been  laid.  liul  il 
IS  evoked  from  its  grave  and  brought  to  life  fur  the  puri,o.e  of  a.mlv- 
ing  It  to  a  part  of  tlie  sea  whieh  was  incliKled  in  the  whole,  a.  to  >Il  icb 
It  IS  now  practically  admitted  that  it  never  existed.  Fron.  the  lime  ihc 
jurisdiction  was  asserted  to  the  time  when  the  pretenMon  to  it  wiu, 
dropped,  It  was  asserted  over  this  portion  of  the  sea  as  purl  of  the 
whole  to  which  the  jurisdiction  was  said  to  extend.  If  it  wuh  ba*l  oa  to 
the  whole  indiscriminately,  it  was  bad  as  to  every  part  of  the  whole 
]3ut  why  was  it  bad  as  to  the  whole?  Simply  because  the  juriH<lieliou 
did  not  extend  to  foreigners  in  foreign  sliips  on  the  higli  seas  hut  lUe 
waters  in  question  have  always  formed  part  of  the  higii  seas.  They 
are  alleged  in  this  indictment  to  be  so  now.  How, "then,  can  ihc 
admiral  have  the  jurisdiction  over  them  contended  for  if  he  hml  it 
not  before?  There  having  been  no  new  statute  conferring  it,  how  ha.s 
he  acquired  it? 

To  come  back  to  the  subject  of  the  realm,  I  cannot  heli)  thinking 
that  some  confusion  arises  from  the  term  "  realm  "  being  used  in  more 
than  one  sense.  Sometimes  it  is  used,  as  in  the  statute  of  Kichard  II., 
to  mean  the  land  of  England,  and  the  internal  sea  witliin  it,  sometimes 
as  meaning  whatever  the  sovereignty  of  the  Crown  of  England  ex- 
tended, or  was  supposed  to  extend,  over. 

When  it  is  used  as  synonymous  with  territory,  I  take  the  true  mean 
ing  of  the  term  "realm  of  England"  to  be  the  territory  to  and  over 
which  the  common  law  of  England  extends  —  in  otlier  words,  all  that 
is  within  the  body  of  any  county  —  to  the  exclusion  of  the  high  seus, 
which  come  under  a  different  jurisdiction  only  because  they  are  not 
within  any  of  those  territorial  divisions,  into  whieh,  among  other  things 
for  the  administration  of  the  law,  the  kingdom  is  parcelled  out.  At  all 
events,  I  am  prepared  to  abide  by  the  distinction  taken  in  the  statutes 
of  Richard  II.  between  the  realm  and  the  sea.  For  centuries  our  judi- 
cial S3-stem  in  the  administration  of  the  criminal  law  has  been  divided 
into  two  distinct  and  independent  branches,  the  one  having  jurisdiction 
over  the  land  and  any  sea  considered  to  be  within  the  land  ;  the  other 
over  the  sea  external  to  the  land.  No  concurrent  assent  of  nations, 
that  a  portion  of  what  before  was  treated  as  the  high  sea,  and  as  such 
common  to  all  the  world,  shall  now  be  treated  as  the  territory  of  the 
local  state,  can  of  itself,  without  the  authority  of  rarliament,  convert 
that  which  before  was  in  the  eye  of  the  law  high  sea  into  British  Icrn- 
tory,  and  so  change  the  law,  or  give  to  the  courts  of  this  country,  inde- 
pendently of  legislation,  a  jurisdiction  over  tlie  foreigner  where  they 
had  it  not  before.  The  argument  in  support  of  the  contrary  appears 
to  me,  I  must  say,  singularly  inconsistent  with  itself  According  to  it 
the  littoral  sea  is  made  to  assume  what  I  cannot  help  calling  an  amphib- 
ious character.  At  one  time  it  is  land,  at  another  it  is  wat<»r.  Is  it 
desired  to  apply  the  law  of  the  siiore  to  it,  so  as  to  m.iko  the  foreigner 
subject  to  that  law?  —  it  becomes  so  much  territory.     Do  you  wish  to 


906  KEGINA   V.    KEYN.  [CHAP.  XXI. 

keep  it  within  the  jurisdiction  of  the  admiral,  as  you  must  do  to  up- 
hold this  indictment? — it  is  made  to  resume  its  former  character  as 
part  of  the  high  seas.  Unable  to  follow  this  vacillating  reasoning,  I 
must  add  that,  to  my  mind,  the  contention  that  the  littoral  sea  forms 
part  of  the  realm  or  territor}^  of  Great  Britain  is  fatal  to  the  argument 
which  it  is  intended  to  support.  For,  if  the  sea  thus  becomes  part  of 
the  territor}^,  as  though  it  were  actually  inter  fauces  terrm,  it  seems  to 
follow  that  it  must  become  annexed  to  the  main  land,  and  so  become 
part  of  the  adjoining  county,  in  which  case  there  would  be  an  end  to 
the  Admiralty  jurisdiction.  The  littoral  sea  cannot  be  land  for  one  pur- 
pose and  high  sea  for  another.  Nor  is  anything  gained  by  substituting 
the  term  "territory"  for  land.  The  law  of  P^ngland  knows  but  of  one 
territory,  —  that  which  is  within  the  body  of  a  county.  All  beyond  it  is 
the  high  sea,  which  is  out  of  the  province  of  English  law  as  applicable 
to  the  shore,  and  to  which  that  law  cannot  be  extended  except  by 
legislation. 

It  does  not  appear  to  me  that  the  argument  for  the  prosecution  is  ad- 
vanced by  reference  to  encroachments  on  the  sea,  in  the  way  of  har- 
bors, piers,  breakwaters,  and  the  like,  even  when  projected  into  the 
open  sea,  or  of  forts  erected  in  it,  as  is  the  case  in  the  Solent.  Where 
the  sea,  or  the  bed  on  which  it  rests,  can  be  physically  occupied  per- 
manently, it  may  be  made  subject  to  occupation  in  the  same  manner  as 
unoccupied  territory.  In  point  of  fact,  such  encroachments  are  gen- 
erally made  for  the  benefit  of  the  navigation  ;  and  are  therefore  read- 
ily acquiesced  in.  Or  they  are  for  the  purposes  of  defence,  and  come 
within  the  principle  that  a  nation  may  do  what  is  necessary  for  the  pro- 
tection of  its  own  territory.  Whether,  if  an  encroachment  on  the  sea 
were  such  as  to  obstruct  the  navigation  to  the  ships  of  other  nations, 
it  would  not  amount  to  a  just  cause  of  complaint,  as  inconsistent  with 
international  rights,  might,  if  the  case  arose,  be  deserving  of  serious 
consideration.  ,  That  such  encroachments  are  occasionally  made  seems 
to  me  to  fall  very  far  short  of  establishing  such  an  exclusive  property 
in  the  littoral  sea  as  that,  in  the  absence  of  legislation,  it  can  be  treated, 
to  all  intents  and  purposes,  as  part  of  the  realm. 

Again,  the  fact,  adverted  to  in  the  course  of  the  discussion,  that  in 
the  west  of  England  mines  have  been  run  out  under  the  bed  of  the  sea 
to  beyond  low-water  mark,  seems  to  me  to  avail  but  little  towards  the 
decision  of  the  question  of  territoinal  property  in  the  littoral  sea.  But 
for  the  Act  of  21  &  22  Vict.  c.  109,  to  which  our  attention  has  been 
specially  directed,  I  should  have  thought  the  matter  simple  enough. 
Between  high  and  low  water  mark  the  property  in  the  soil  is  in  the 
Crown,  and  it  is  to  be  assumed  that  it  is  by  grant  or  license  from  the 
Crown,  or  by  prescription,  which  presupposes  a  grant,  tnat  a  mine  is 
carried  beneath  it.  Beyond  low-water  mark  the  bed  of  the  sea  might, 
I  should  have  thought,  be  said  to  be  unappropriated,  and,  if  capable  of 
being  appropriated,  would  become  the  property  of  the  first  occupier.  I 
should  not  have  thought  that  the  carrying  one  or  two  mines  into  the 


CHAP.  XXI.]  REGINA    V.    KEYN. 


907 


bed  of  the  sea  beyond  low-water  murk  could  have  any  real  beuriuL'  on 
a  question  of  international  law  like  the  present. 

But  the  Act  just  referred  to,  and  the  circumstances  out  of  which  it 
arose,  have  been  brought  impressively  to  our  attonlion  by  the  Lord 
Chief  Justice  of  the  Common  Pleas,  as  showing  tiiat,  acconiing  to  par- 
liamentary exposition,  the  bed  of  the  sea  beyond  low- water  mark  in  in 
the  Crown.  I  cannot  help  thinking  that,  wlien  the  matter  comes  to  be 
looked  at  a  little  more  closely,  it  will  be  found  tiiat  the  facts  by  no 
means  warrant  this  conclusion.  The  Duchy  of  Cornwall,  whicli  is  vesU-d 
in  His  Royal  Highness  the  Prince  of  Wales,  ext.'uds,  as  is  known,  to 
low-water  mark.  Mines  existing  under  the  bed  of  the  sea  within  the 
low-water  mark  having  been  carried  out  beyond  it,  a  question  was 
raised  on  the  part  of  the  Crown  as  to  whether  the  minerals  Iwyond  the 
low-water  mark,  and  not  within  the  county  of  Cornwall,  as  also  those 
lying  under  the  sea-shore  between  high  and  low-water  mark  witliiti  the 
county  of  Cornwall,  and  under  the  estuaries  and  tidal  rivers  within  the 
county,  did  not  belong  to  the  Crown.  The  matter  having  been  referred 
to  Sir  John  Patteson,  his  decision  as  to  the  mines  and  minerals  Ik-Iow 
low-water  mark  was  in  favor  of  the  Crown  ;  with  reference  to  the 
others,  in  favor  of  the  duchy.  Not  having  had  the  advantage  of  see- 
ing Sir  John  Patteson's  award,  I  am  unaware  whether  the  precise 
grounds  on  which  his  decision  proceeded  are  stated  in  it,  but  the  terms 
iu  which  it  was  framed  may  be  gathered  with  perfect  precision  from  the 
recitals  of  the  Act  of  Parliament  which,  b}'  arrangement,  was  passed 
shortl}'  afterwards  to  give  statutory  effect  to  the  awanl.  From  the 
recitals  in  the  preamble  to  the  Act  it  appears  that  the  award  was  very 
carefully,  I  may  say  cautioush',  drawn.  After  stating  the  matter  in 
dispute,  and  the  reference  to  Sir  John  Patteson,  the  preamble  goes  on 
to  recite  that  the  arbitrator  had  decided,  — 

"First,  that  the  right  to  all  mines  and  minerals  lying  under  the  sea- 
shore between  high  and  low-water  marks  within  the  said  count\  of 
Cornwall,  and  under  estuaries  and  tidal  rivers,  and  other  places, 
even  below  low-water  mark,  being  in  and  part  of  the  said  county,  is 
vested  in  His  Royal  Highness  as  part  of  the  soil  and  territorial  posses- 
sions of  the  Duciiy  of  Cornwall.  Secondly,  that  the  right  to  all  mines 
and  minerals  lying  below  low-water  mark,  under  the  open  sea  adjac-cnt 
to,  but  not  being  part  of,  the  county  of  Cornwall,  is  vested  in  Her 
Majesty  the  Queen  in  right  of  her  Crown,  although  such  minerals  may 
or  might  be  won  by  workings  commenced  above  low-water  mark  and 
extended  below  it." 

The  difference  between  the  two  parts  of  this  recital  is  at  once  api)ar- 
ent.  When  dealing  with  that  which  is  within  low-water  mark,  the 
award  declares  the  right  to  the  mines  and  minerals  under  the  sea-shore 
to  be  vested  in  His  Royal  Highness  "  as  part  of  the  soil  and  tornt/v 
rial  possessions  of  the  Duchy  of  Cornwall."  But  when  the  Uarncl 
arbitrator  comes  to  deal  with  the  mines  and  minerals  »)elow  low-waler 


908  REGINA   V.    KEYN.  [CHAP.  XXL 

mark,  he  stops  short  of  sayiug  that  these  mines  and  minerals  belong 
to  Her  Majesty  by  virtue  of  any  ownership  in  the  soil.  He  confines  him- 
self to  awarding  that  the  right  to  such  mines  and  minerals  is  vested  in 
Her  Majesty  "  in  right  of  her  Crown."  What  the  grounds  were  on  which 
this  decision  was  based  I  can  only  conjecture.  Sir  John  Patteson 
may  have  held,  on  the  authority  of  Collis  (p.  53),  that  a  subject  cannot 
have  any  ownership  in  the  soil  below  low-water  mark,  —  and,  though 
standing  next  to  the  Throne,  the  Prince  of  Wales  is  still  a  subject, — 
and  that,  as  between  the  Crown  and  a  subject  as  regards  property  in 
or  under  the  open  sea,  the  Crown  had  the  better  right.  Or  the  deci- 
sion may  have  been  founded  on  the  peculiar  constitution  of  the  Duchy 
of  Cornwall,  which  is  settled  by  Act  of  Parliament  and  occasionally 
reverts  to  the  Crown.  I  cannot  help  thinking  that  if  the  arbitrator 
had  proceeded  on  the  ground  that  the  bed  of  the  sea  below  low-water 
mark  belonged  to  the  Crown,  he  would  have  said  so,  as  he  had  just  be- 
fore done  with  reference  to  the  soil  above  low-water  mark.  It  is  true 
that,  when  we  come  to  the  enacting  part  of  the  statute,  that  which  had 
been  left  unsaid  by  Sir  John  Patteson  is  supplied.  The  mines  and 
minerals  beyond  low-water  mark  are  enacted  and  declared  to  be  in  the 
Queen,  in  right  of  her  Crown,  as  part  of  the  soil  and  possessions  of 
the  Crown,  just  as  the  mines  and  minerals  within  low-water  mark  are 
stated  to  be  vested  in  the  Prince  of  Whales  as  Duke  of  Cornwall,  in 
right  of  the  Duchy  of  Cornwall,  as  part  of  the  soil  and  possessions  of 
the  duchy.  But  it  is  expressly  declared  that  this  is  to  be  taken  to  be 
so  only  "  as  between  the  Queen  in  light  of  her  Crown,  and  the  Prince 
of  Wales  in  right  of  the  Duchy  of  Cornwall,"  and  the  rights  of  all 
other  persons  are  expressly  preserved.  I  am  surprised,  I  own,  that  we 
should  be  asked  to  look  on  this  piece  of  legislation  as  a  parliamentary 
recognition  of  the  universal  right  of  the  Crown  to  the  ownership  of  the 
bed  of  the  sea  below  low-water  mark.  This  was  a  bill  for  the  settle- 
aaent  of  the  question  as  to  the  right  to  particular  mines  and  minei-als 
between  the  Crown  and  the  duchy,  a  measure  in  which  both  the  royal 
personages  particularly  concerned  and  their  respective  advisers  con- 
curred, and  in  which  no  other  person  whatever  was  interested.  To 
what  member  of  Parliament,  even  the  most  eccentric,  could  it  possibU' 
have  occurred  to  raise  an  objection  to  it  on  the  ground  that  it  involved 
an  assertion  of  the  Queen's  right  of  property  in  the  bed  of  the  sea  ? 
To  whom  would  it  occur  that,  in  passing  it.  Parliament  was  asserting 
the  right  of  the  Crown  to  the  bed  of  the  sea  over  the  three-mile  dis- 
tance, instead  of  settling  a  dispute  as  to  the  specific  mines  which  were 
in  question?  With  the  most  unfeigned  respect  for  my  learned  col- 
league, I  cannot  but  think  that  he  has  attached  to  this  piece  of  legisla- 
tion a  degree  of  importance  to  which  it  is  by  no  means  entitled. 

It  thus  appearing,  as  it  seems  to  me,  that  the  littoral  sea  bej^ond 
low-water  mark  did  not,  as  distinguished  from  the  rest  of  the  high 
seas,  originally  form  part  of  the  territory  of  the  realm,  the  question 
again  presents  itself,  when  and  how  did  it  become  so?    Can  a  portion 


CHAP.  XXI.]  REGINA    V.    KRYN.  0.,.» 

Of  that  Which  was  before  high  sea  have  lK.>en  converted  ir.i-.  Isr  t>...  ur 
ntory    without  any  action  on  the  part  of  the  British  Cov.rnMK-,.,  or 
legislature-  by  the  mere  assertions  of  writers  on  pubhc  hm  -or  ev.u 
by  the  assent  of  other  nations?  "•  t.»«  u 

And  when  in  support  of  ti.is  position,  or  of  the  theory  of  the  thrt-c 
mile  zone  in  general,  the  statements  of  the  writers  on  international  hw 
are  relied  on,  the  question  may  well  be  asked,  upon  what  authoniv  .r„ 
these  statements  founded?  When  and  in  what  n.an.u.r  have  ti.e  nniion* 
who  are  to  be  affected  by  such  a  rule  as  these  wriK-r.,  following  on* 
another,  have  laid  down,  signilicl  their  assent  to  it?  to  «av  nolhlnir  of 
the  difficulty  which  might  be  found  in  saying  to  whirl,  of  thc«..  wn- 
flicting  opinions  such  assent  h.id  been  given. 

For,  even  if  entire  unanimity  had  existed  in  respect  of  the  imix^rlflnt 
particulars  to  which  I  have  referred,  in  place  of  so  much  diserepanrv  of 
opinion,  the  question  would  still  remain,  how  far  the  law  as  glaUnl  by 
the  publicists  had  received  the  assent  of  the  civilized  nations  of  the 
world.  For  writers  on  international  law,  however  valuable  their  \nU>n 
may  be  in  elucidating  and  ascertaining  the  principles  and  rules  of  hiw. 
cannot  make  the  law.  To  be  binding,  the  law  must  have  received  the 
assent  of  the  nations  who  arc  to  be  bound  by  it.  This  assent  mav  l>c 
express,  as  by  treaty  or  the  acknowledged  concurrence  of  governmJnU, 
or  may  be  implied  from  established  usage,  —  an  instance  of  which  is 
to  be  found  in  the  fact  that  merchant  vessels  on  the  high  seas  are  held 
to  be  subject  only  to  the  law  of  the  nation  under  whose  flag  they  sail, 
while  in  the  ports  of  a  foreign  state  they  are  subject  to  the  local  law  as 
well  as  to  that  of  their  own  countr}-.  In  the  absence  of  proof  of  assent, 
as  derived  from  one  or  other  of  these  sources,  no  unanimity  on  the 
part  of  theoretical  writers  would  warrant  the  judicial  application  of  the 
law  on  the  sole  authority  of  their  views  or  statements.  Nor,  in  mv 
opinion,  would  the  clearest  proof  of  unanimous  assent  on  the  part  of 
other  nations  be  sufficient  to  authorize  the  tribunals  of  this  countrA'  to 
apply,  without  an  Act  of  Parliament,  what  would  practically  amount 
to  a  new  law.  In  so  doing  we  should  be  unjustifialily  usurping  the 
province  of  the  legislature.  The  assent  of  nations  is  douhiless  snlll- 
cient  to  give  the  power  of  parliamentary  legislation  in  a  matter  other- 
wise within  the  sphere  of  international  law ;  but  it  would  be  |x)wcrle!i« 
to  confer  without  such  legislation  a  jurisdiction  beyond  and  unknown 
to  the  law,  such  as  that  now  insisted  on,  a  jurisdiction  over  foreigners 
in  foreign  ships  on  a  portion  of  the  high  seas. 

When  I  am  told  that  all  other  nations  have  assented  to  such  .in  alMso 
lute  dominion  on  the  part  of  the  littoral  state,  over  this  jwrtion  of  the 
sea,  as  that  their  ships  may  be  excluded  from  it,  and  that,  wifhoul 
any  open  legislation,  or  notice  to  them  or  their  subjects,  the  latter  ui«\ 
be  held  liable  to  the  local  law,  I  ask.  first,  what  pn>of  there  is  of  such 
assent  as  here  asserted  ;  and,  secondly,  to  what  extent  has  surh  n«»«onl 
been  carried?  a  question  of  inlinite  importance,  when,  undirocto<J  by 
legislation,  we  are  called  ui)on  to  apply  the  law  on  the  strength  of  «ucb 


910  BEGIN  A   V.    KEYN.  [CHAP.  XXL 

assent.  It  is  said  that  we  are  to  take  the  statements  of  the  publicists 
as  conclusive  proof  of  the  assent  in  question,  and  much  has  been  said 
to  impress  on  us  the  respect  which  is  due  to  their  authority,  and  that 
they  are  to  be  looked  upon  as  witiiesses  of  the  facts  to  which  they 
speak,  witnesses  whose  statements,  or  the  foundation  on  which  those 
statements  rest,  we  are  scarcely  at  liberty  to  question.  I  demur  alto- 
gether to  this  position.  I  entertain  a  profound  respect  for  the  opinion 
of  jurists  when  dealing  with  the  matters  of  juridical  principle  and  opin- 
ion, but  we  are  here  dealing  with  a  question  not  of  opinion,  but  of  fact, 
and  I  must  assert  my  entire  liberty  to  examine  the  evidence  and  see 
upon  what  foundation  these  statements  are  based.  The  question  is 
not  one  of  theoretical  opinion,  but  of  fact,  and,  fortunately,  the  writers 
upon  whose  statements  we  are  called  upon  to  act  have  afforded  us  the 
means  of  testing  those  statements  by  reference  to  facts.  They  refer  us 
to  two  things,  and  to  these  alone,  —  treaties  and  usage.  Let  us  look  a 
little  more  closely  into  both. 

First,  then,  let  us  see  how  the  matter  stands  as  regards  treaties.  It 
may  be  asserted,  without  fear  of  contradiction,  that  the  rule  that  the 
sea  surrounding  the  coast  is  to  be  treated  as  a  part  of  the  adjacent 
territory,  so  that  the  state  shall  have  exclusive  dominion  over  it,  and 
that  the  law  of  the  latter  shall  be  generally  applicable  to  those  passing 
over  it  in  the  ships  of  other  nations,  has  never  been  made  the  subject- 
matter  of  any  treaty,  or,  as  matter  of  acknowledged  right,  has  formed 
the  basis  of  any  treaty,  or  has  even  been  the  subject  of  diplomatic  dis- 
cussion. It  has  been  entirely  the  creation  of  the  writers  on  interna- 
tional law.  It  is  true  that  the  writers  who  have  been  cited  constantly 
refer  to  treaties  in  support  of  the  doctrine  they  assert.  But  when  the 
treaties  they  refer  to  are  looked  at,  they  will  be  found  to  relate  to 
two  subjects  onl}',  —  the  observance  of  the  rights  and  obligations  of 
neutralit}',  and  the  exclusive  right  of  fishing.  In  fixing  the  limits  to 
which  these  rights  should  extend,  nations  have  so  far  followed  the 
writers  on  international  law  as  to  adopt  the  three-miles  range  as  a  con- 
venient distance.  There  are  several  treaties  b}'  which  nations  have 
engaged,  in  the  event  of  either  of  them  being  at  war  with  a  third,  to 
treat  the  sea  within  three  miles  of  each  other's  coasts  as  neutral  terri- 
tory, within  which  no  warlike  operations  should  be  carried  on  ;  instances 
of  which  will  be  found  in  the  various  treatises  on  international  law. 

Thus,  for  instance,  in  the  treaties  of  commerce,  between  Great  Brit- 
ain and  France,  of  September,  1786  ;  between  France  and  Russia,  of 
January,  1787 ;  between  Great  Britain  and  the  United  States,  of  Octo- 
ber, 1794,  each  contracting  part}'  engages,  if  at  war  with  any  other 
nation,  not  to  carry  on  hostilities  within  cannon-shot  of  the  coast 
of  the  other  contracting  party ;  or,  if  the  other  should  be  at  war,  not 
to  allow  its  vessels  to  be  captured  within  the  like  distance.  There  are 
many  other  treaties  of  the  like  tenor,  a  list  of  which  is  given  by  Azuni 
(vol.  ii.  p.  78)  ;  and  various  ordinances  and  laws  have  been  made  by 
the  different  states  in  order  to  give  effect  to  them. 


CIIAP.   XXI.]  UEGINA   V.    KLVN.  9l| 

Again,  nations,  possessing  opposite  or  iiuighboriiig  coasta,  burtlcriug 
on  a  common  sea,  Lave  soiiietiuies  fouuil  il  uxi>ciliLui  lo  agrvc  thai 
the  subjects  of  each  aliall  exercise  an  exclusive  right  of  fibhiug  lo  a 
given  distance  from  their  own  shores,  and  here  ul.so  have  acvcplod  the 
three  miles  as  a  convenient  distance.  Such,  fur  iusUiuec,  itre  the  tun- 
ties  made  between  this  country  anil  the  United  SUilcb  in  rduliou  Uj  lltu 
lishery  off  the  coast  of  Newfoundland,  anil  those  between  thitt  couiitry 
niid  France  in  relation  to  the  fishery  on  their  respective  siiores  ;  and 
local  laws  have  been  passed  to  give  effect  to  these  engageiuenU. 

But  in  all  these  treaties  this  distance  is  adopted,  not  a<»  mnttor  of 
existing  right  established  by  the  general  law  of  nations,  but  as  mailer 
of  mutual  concession  and  convention.  Instead  of  upholding  the  doc- 
trine contended  for,  the  fact  of  these  treaties  having  been  entered  into 
Las  rather  the  opposite  tendency :  for  it  is  obvious  that,  if  the  Itrrito- 
rial  right  of  a  nation  bordering  on  the  sea  to  this  portion  of  Uie  n»lja- 
cent  waters  had  been  established  by  the  common  assent  of  nations, 
these  treaty  arrangements  would  have  been  wholly  suiH.'rfluou8.  lljich 
uation  would  have  been  bound,  independently  of  treaty  cngageujent,  lo 
respect  the  neutrality  of  the  other  in  these  waters  as  much  as  iu  its 
inland  waters.  The  foreigner  invading  the  rights  of  the  local  fisherainn 
would  have  been  amenable,  consistently  with  international  l.iw,  to  l<Mal 
legislation  prohibiting  such  infringement,  without  any  stipulation  to 
that  effect  by  treaty.  For  what  object,  then,  have  treaties  been  resorted 
to?  Manifestly  in  order  to  obviate  all  questions  as  to  concurrent  or 
conflicting  rights  arising  under  the  law  of  nations.  Possibly,  after 
these  precedents  and  all  that  has  been  written  on  this  subject,  it  m.iy 
not  be  too  much  to  say  that,  independently  of  treaty,  the  ihrei- mile 
belt  of  sea  might  at  this  day  be  taken  as  belonging,  for  these  puriK>sis, 
to  the  local  state.  But  it  is  scarcely  logical  to  infer,  from  such  treaties 
alone,  that,  because  nations  have  agreed  to  treat  the  littoral  sea  aH 
belonging  to  the  country  it  adjoins,  for  certain  specified  objects,  Ihcy 
have  therefore  assented  to  forego  all  other  rights  previously  enjoyed  in 
common,  and  have  submitted  themselves,  even  to  the  extent  of  tlio 
right  of  navigation  on  a  portion  of  the  high  seas,  and  the  lial»ility  of 
their  subjects  therein  to  the  criminal  law,  to  the  will  of  the  local  sov- 
ereign, and  the  jurisdiction  of  the  local  state.  Equally  ill(»gical  is  it. 
as  i^  seems  to  me,  from  the  adoption  of  the  three-mile  distance  in  ; 
particular  instances,  to  assume,  independently  of  everything  i'. 
recognition,  by  the  common  assent  of  nations,  of  the  principle  that  Uie 
subjects  of  one  state  passing  in  ships  within  three  miles  of  the  i-oasl 
of  another  shall  be  in  all  respects  subject  to  the  law  of  the  bllcr. 
It  may  be  that  the  maritime  nations  of  the  world  are  prcparinl  to 
acquiesce  in  the  appropriation  of  the  littoral  sea;  but  I  cannot  Ihmk 
that  these  treaties  help  us  much  towards  arriving  at  Uie  couvhmon 
that  this  appropriation  has  actually  taken  place.  At  all  evonU.  Ibe 
question  remains,  whether  judicially  we  can  infer  that  the  nations  who 
have  been  parties  to  these  treaties,  and  still  further  those  who  have 


912  EEGINA   V.    KEYN.  [CHAP.  XXI 

not,  have  therebj-  assented  to  the  application  of  the  criminal  law  of 
other  nations  to  their  subjects  on  the  waters  in  question,  and  on  the 
strength  of  such  inference  so  apply  the  criminal  law  of  this  country. 

The  uncertainty  in  which  we  are  left,  so  far  as  judicial  knowledge 
is  concerned,  as  to  the  extent  of  such  assent,  likewise  presents,  I  think, 
a  very  serious  obstacle  to  our  assuming  the  jurisdiction  we  are  called 
upon^  to  exercise,  independently  of  the,  to  my  mind,  still  more  serious 
difficulty,  that  we  should  be  assuming  it  without  legislative  warrant. 

So  much  for  treaties.  Then  how  stands  the  matter  as  to  usage,  to 
which  reference  is  so  frequently  made  by  the  publicists  in  support  of 
their  doctrine?  When  the  matter  is  looked  into,  the  only  usage  found 
to  exist  is  such  as  is  connected  with  navigation,  or  with  revenue,  local 
fisheries,  or  neutrality,  and  it  is  to  these  alone  that  the  usage  relied  on 
is  confined.  Usage  as  to  the  application  of  the  general  law  of  the 
local  state  to  foreigners  on  the  littoral  sea  there  is  actually  none.  No 
nation  has  arrogated  to  itself  the  right  of  excluding  foreign  vessels 
from  the  use  of  its  external  littoral  waters  for  the  purpose  of  naviga- 
tion, or  has  assumed  the  power  of  making  foreigners  in  foreign  ships 
passing  through  these  waters  subject  to  its  law,  otherwise  than  in 
respect  of  the  matters  to  which  I  have  just  referred.  Nor  have  the 
tribunals  of  any  nation  held  foreigners  in  these  waters  amenable  gen- 
erally to  the  local  criminal  law  in  respect  of  oflfences.  It  is  for  the  first 
time  in  the  annals  of  jurisprudence  that  a  court  of  justice  is  now  called 
upon  to  apply  the  criminal  law  of  the  country  to  such  a  case  as  the 
present. 

It  may  well  be,  I  say  again,  that  —  after  all  that  has  been  said  and 
done  in  this  respect  —  after  the  instances  which  have  been  mentioned 
of  the  adoption  of  the  three-mile  distance,  and  the  repeated  assertion 
of  this  doctrine  by  the  writers  on  public  law,  a  nation  which  should  now 
deal  with  this  portion  of  the  sea  as  its  own,  so  as  to  make  foreigners 
within  it  subject  to  its  law,  for  the  prevention  and  punishment  of  offences, 
would  not  be  considered  as  infringing  the  rights  of  other  nations.  But 
I  apprehend  that  as  the  ability  so  to  deal  with  these  waters  would 
result,  not  from  any  original  or  inherent  right,  but,  from  the  acquies- 
cence of  other  states,  some  outward  manifestation  of  the  national 
will,  in  the  shape  of  open  practice  or  municipal  legislation,  so  as  to 
amount,  at  least  constructively,  to  an  occupation  of  that  which  was  be- 
fore unappropriated,  would  be  necessary  to  render  the  foreigner,  not 
previously  amenable  to  our  general  law,  subject  to  its  control.  That 
such  legislation,  whether  consistent  with  the  general  law  of  nations  or 
not,  would  be  binding  on  the  tribunals  of  this  country  —  leaving  the 
question  of  its  consistency  with  international  law  to  be  determined 
between  the  governments  of  the  respective  nations  —  can  of  course 
admit  of  no  doubt.  The  question  is  whether  such  legislation  would 
not,  at  all  events,  be  necessary  to  justify  our  courts  in  applying  the 
law  of  this  country  to  foreigners  under  entirely  novel  circumstances  in 
which  it  has  never  been  applied  before. 


CHAP.  XXI.]  REGINA  V.   KEYN. 


913 


It  IS  obviously  one  thing  to  say  that  the  legislature  of  a  nation  mav 
from  the  comuion  assent  of  other  nations,  have  ac<|uire(l  tla-  full  ri-'i.t 
to  legislate  over  a  part  of  that  which  was  hoCc.re  hi^'h  sea,  ui..l  a«  Much 
common  to  all  the  world  ;  aniHher  and  a  very  .lil!erei.t  thii.fr  to  h-iv 
Uiat  the  law  of  the  local  state  becomes  thereby  at  on.-e,  without  anv- 
thing  more,  applicable  to  foreigners  within  such  i)art,  or  that,  indepen- 
dently of  legislation,  the  courts  of  the  local  state  can  propria  n'yore  m, 
apply  it.  The  one  position  does  not  follow  from  the  other:  and  it  ih 
essential  to  keep  the  two  things,  the  power  of  l>aili:iincnt  to  h-frislatr. 
and  the  authority  of  our  courts,  without  such  legislation,  to  ajljily  ihr 
criminal  law  where  it  could  not  have  been  ai)plied  before,  allogetlHT 
distinct,  which,  it  is  evident,  is  not  always  done.  It  is  unnecessary  to 
the  defence,  and  equally  so  to  the  decision  of  the  ca.se,  to  detcm)inc 
whether  Parliament  has  the  right  to  treat  the  three-mile  zone  as  p.irt  of 
the  realm  consistently  with  international  law.  That  is  a  matter  on 
which  it  is  for  Parliament  itself  to  decide.  It  is  enough  for  us  that  .it 
has,  so  far  as  to  be  binding  upon  us,  the  power  to  do  so.  The  question 
is  whether,  acting  judicially,  we  can  treat  the  power  of  Parliament  t«. 
legislate  as  making  up  for  the  absence  of  actual  legislation.  I  am 
clearly  of  opinion  that  we  cannot,  and  that  it  is  only  in  the  instances  in 
whicli  foreigners  on  the  seas  have  been  made  specifically  liable  to  our 
law  by  statutory  enactment  that  that  law  can  be  applied  to  them.' 

But  the  difficulties  which  stand  in  the  way  of  the  prosecution  arc 
not  yet  exhausted.  A  technical  difficulty  presents  itself,  which  appears 
to  be  of  a  formidable  character.  Assuming  everything,  short  of  the 
ultimate  conclusion,  to  be  conceded  to  the  prosecution  —  granting  that 
the  three-mile  zone  forms  part  of  the  territory  or  realm  of  Knglaud,  and 
that  without  parliamentary  interference  the  territorial  sea  has  become 
part  of  the  realm  of  England,  so  that  jurisdiction  has  been  acquired 
over  it,  the  question  arises,  —  In  whom  is  the  jurisdiction?  The  indict- 
ment alleges  that  the  offence  was  committed  on  the  high  seas.  To  su|> 
port  this  averment  the  place  in  question  must  still  remain  part  of  the 
high  sea.  But  if  it  is  to  be  held  to  be  the  high  sea,  and  so  within  the 
jurisdiction  of  the  admiral,  the  prosecution  fails,  if  the  admiral  never 
had  jurisdiction  over  foreigners  in  foreign  ships,  the  proof  of  whii  h 
totally  fails,  and  the  negative  of  which,  I  think,  must  ho  considereti  as 
established  :  and  no  assent  on  the  part  of  foreign  nations  to  the  exer- 
cise of  dominion  and  jurisdiction  over  these  waters  can,  without  an 
Act  of  Parliament,  confer  on  the  admiral  or  any  other  judge  of  this 
country  a  larger  jurisdiction  than  he  possessed  before.  If  the  liiton.l 
sea  is  to  be  considered  territory  — in  other  words,  no  longer  high  s.a 
—  the  present  indictment  fails,  and  this,  whether  the  part  in  question 
has  become  part  of  a  county  or  not  The  only  distinction  known  to 
the  law  of  England,  as  regards  the  sea,  is  between  such  part  of  the  sta 

1  The  learned  Chief  Justice  then  examineJ  the  statutes,  anJ  decide.!  that  there  WM 

uo  statutory  jurisdiction  in  tliis  case.  —  En. 

58 


914  KEGINA   V.   KEYN.  [CHAP.  XXL 

as  is  within  the  bod}'  of  a  count}'  and  such  as  is  not.  In  the  first  there 
is  jurisdiction  over  the  foreigner  on  a  foreign  ship ;  in  tlie  other,  there 
IS  not.  Such  a  thing  as  sea  which  shall  be  at  one  and  the  same  time 
high  sea  and  also  part  of  the  territory'  of  the  realm,  is  unknown  to  the 
present  law,  and  never  had  an  existence,  except  in  the  old  and  sense- 
less theory  of  a  universal  dominion  over  the  narrow  seas. 

To  put  this  shortl}'.  To  sustain  this  indictment  the  littoral  sea  must 
still  be  considered  as  part  of  the  high  seas,  and  as  such,  under  the 
jurisdiction  of  the  admiral.  But  the  admiral  never  had  criminal  juris- 
diction over  foreign  ships  on  the  high  seas.  How,  when  exercising  the 
functions  of  a  British  judge,  can  he,  or  those  acting  in  substitution  for 
him,  assume  a  jurisdiction  which  heretofore  he  did  not  possess,  unless 
authorized  b}'  statute?  On  the  other  hand,  if  this  sea  is  to  be  consid- 
ered as  territory,  so  as  to  make  a  foreigner  within  it  liable  to  the  law 
of  England,  it  cannot  come  under  the  jurisdiction  of  the  Admiralty. 

In  the  result,  looking  to  the  fact  that  all  pretension  to  sovereignty 
or  jurisdiction  over  foreign  ships  in  the  narrow  seas  has  long  since 
been  wholly  abandoned  —  to  the  uncertainty  which  attaches  to  the  doc- 
trine of  the  publicists  as  to  the  degree  of  sovereignty  and  jurisdiction 
which  ma}' be  exercised  on  the  so-called  territorial  sea  —  to  the  fact 
that  the  right  of  absolute  sovereignty  therein,  and  of  penal  jurisdiction 
over  the  subjects  of  other  states,  has  never  been  expressly  asserted  or 
conceded  among  independent  nations,  or,  in  practice,  exercised  and 
acquiesced  in,  except  for  violation  of  neutrality  or  breach  of  revenue  or 
fishery  laws,  which,  as  has  been  pointed  out,  stand  on  a  different  foot- 
ing —  as  well  as  to  the  fact  that,  neither  in  legislating  with  reference 
to  shipping,  nor  in  respect  of  the  criminal  law,  has  Parliament  thought 
proper  to  assume  territorial  sovereignty  over  the  three-mile  zone,  so  as 
to  enact  that  all  offences  committed  upon  it,  by  foreigners  in  foreign 
ships,  should  be  within  the  criminal  law  of  this  country,  but,  on  the 
contrary,  wherever  it  was  thought  right  to  make  the  foreigner  amenable 
to  our  law,  has  done  so  by  express  and  specific  legislation  —  I  cannot 
think  that,  in  the  absence  of  all  precedent,  and  of  any  judicial  decision 
or  authority  applicable  to  the  present  purpose,  we  should  be  justified  in 
holding  an  offence,  committed  under  such  circumstances,  to  be  punish- 
able by  the  law  of  England,  especially  as  in  so  holding  we  must  declare 
the  whole  body  of  our  penal  law  to  be  applicable  to  the  foreigner  pass- 
ing our  shores  in  a  foreign  vessel  on  his  way  to  a  foreign  port. 

I  am  by  no  means  insensible  to  the  argument  ab  iyiconvenienti, 
pressed  upon  us  by  the  Solicitor-General.  It  is,  no  doubt,  desirable, 
looking  to  the  frequency  of  collisions  in  the  neighborhood  of  our  coasts, 
that  the  commanders  of  foreign  vessels,  who,  by  unskilful  navigation 
or  gross  want  of  care,  cause  disaster  or  death,  should  be  as  much 
amenable  to  the  local  law  as  those  navigating  our  own  vessels,  instead 
of  redress  having  to  be  sought  in  tlie,  perhaps,  distant  country  of  the 
offender.  But  the  remedy  for  the  deficiency  of  the  law,  if  it  can  be 
made  good  consistently  with  international  law,  —  as  to  which  we  are  not 


CHAP.  XXI.]  KEGINA   V.    KLYN.  915 

called  upon  to  pronounce  an  opinion,  — .should  bu  hupplicd  by  tUt-  actiuu 
of  the  legislature,  with  whom  the  responsibility  for  uny  inipcTii-ction  of 
the  law  alone  rests,  not  by  a  usurpation  on  our  part  of  u  junuiiiclion 
which,  without  legislation,  we  do  not  judicially  possc-hb. 

This  matter  has  been  sometimes  discussed  ui)on  the  assumption  Ihut 
the  alternative  of  the  non-exercise  of  jurisdiction  on  the  part  of  our 
courts  must  be  the  total  impunity  of  foreigners  in  respect  of  eolliMion 
arising  from  negligence  in  the  vicinity  of  our  coast.  Hut  tliin  ih  a  mits- 
takeu  view.  If  by  the  assent  of  other  nations  the  three  tiiile  Im-U  of 
sea  has  been  brought  under  the  douiiuion  of  tliis  country,  so  Ihai  con- 
sistently with  the  right  of  other  nations  it  may  be  treated  as  a  i)ortion  of 
British  territor}',  which,  of  course,  is  assumed  as  the  foumlation  of  the 
jurisdiction  which  the  courts  of  law  are  here  called  upon  to  exerci.se,  it 
follows  that  Parliament  can  legislate  in  respect  of  it.  I'arliamenl  ban 
only  to  do  so,  and  the  judges  of  the  land  will,  of  coiu-se,  as  in  duly 
bound,  give  full  etfect  to  the  law  which  Parliament  shall  so  create.  The 
question  is,  whether  legislative  action  shall  be  applied  to  meet  the  exi- 
gency of  the  case,  or  judicial  authority  shall  be  strained  and  misa|>- 
plied  in  order  to  overcome  the  dilliculty.  Every  such  usurped  exercise 
of  judicial  power  is,  in  m}'  opinion,  a  violation  of  fundamental  princi- 
ples, and  in  the  highest  degree  unconstitutional.  The  respousibility  is 
with  the  legislature,  and  there  it  must  rest. 

Having  arrived  at  this  conclusion,  it  becomes  necessary  to  consuler 
the  second  point  taken  on  the  part  of  the  Crown,  namely,  that  ihouj^h 
the  negligence  of  which  the  accused  was  guilty  occurred  on  board  a 
foreign  ship,  yet,  the  death  having  taken  place  on  board  a  British  ship, 
the  oftence  was  committed  within  the  jurisdiction  of  a  British  court  of 
justice.  This  is  the  point  insisted  on  by  my  brothers  Dknmax  and 
LiNDLEY,  with  the  somewhat  hesitating  and  reluctant  a.ssent  of  the 
Lord  Chief  Justice  of  the  Common  Pleas.  I  find  myself  compelled 
to  dissent  altogether  from  their  opinion.  In  considering  this  (luesiion 
it  is  necessary  to  bear  in  mind  —  which  I  am  disposed  to  think  has  not 
always  been  done  —  that  we  must  deal  with  this  part  of  the  ca.se  with- 
out any  reference  to  the  theory  of  the  three-mile  zone,  and  (as  was  very 
properly  admitted  by  the  Solicitor-General)  as  though  the  two  ships 
had  met,  and  the  occurrence  had  happened,  on  the  ocean. 

The  argument  rests  mainly  on  the  authority  of  Reg.  v.  Coombe. 
1  Lea.  Cr.  C.  388  ;  in  which,  on  a  trial  for  a  murder  under  an  AdniiraUy 
commission,  it  was  hel.l  by  all  the  judges  that,  where  a  shot  had  In-en 
fired  from  the  shore  at  a  person  in  a  vessel  on  the  .sea,  and  had  killeil 
him,  as  the  death  took  place  on  the  sea,  the  otfencc  was  properly 
cognizable  under  an  Admiralty  commission. 

The  case  of  the  United  States  v.  Davis,  2  Sunmer,  482,  is,  m  hke 
manner,  an  autboritv  in  favor  of  the  view  that  where  a  person,  finng 
a  gun  from  a  ship,  kills  a  person  on  board  another  ship,  the  offence  xb 
in  point  of  law  committed  on  board  the  latter.  Indeed  th.s  case  goes 
much  further  than  Keg.  ..  Coombe,  1  Lea.  Cr.  C.  388 ;  as  it  was  held 


916  KEGI^'A    V.    K-ETS.  [CHAP.  XXL 

that,  the  two  ships  having  been  lying  in  the  waters  of  a  local  state,  the 
person  causing  the  death  under  such  circumstances  was  amenable  to 
the  local  law  alone,  and  not  to  that  of  the  country  to  which  his  ship 
belonged.  The  defendant  was  indicted  before  a  Circuit  Court  of  the 
United  States  for  manslaughter.  He  was  the  master  of  an  American 
ship,  lying  in  the  harbor  of  Raiatia,  one  of  the  Society  Islands.  A  dis- 
turbance having  arisen  ou  board  the  ship,  the  defendant  took  his  gun  in 
hand,  and  the  gun  going  off  —  whether  fired  purposely  or  not  was 
uncertain  —  a  man  on  board  another  vessel  was  unintentionally  killed. 
The  court  held,  on  the  authority  of  Coorabe's  case,  1  Lea.  Cr.  C.  388 ; 
that  the  offence,  if  any,  had  been  committed  on  board  a  foreign  vessel 
in  the  jurisdiction  of  a  foreign  government,  and  that  an  American 
court  had,  therefore,  no  jurisdiction  to  try  him. 

The  ratio  decidendi  in  these  cases  does  not  appear  in  the  reports ; 
and  it  becomes  desirable,  therefore,  to  see  by  what  principle  the  deci- 
sion in  such  a  case  should  be  governed. 

Now,  homicide,  whether  it  takes  the  form  of  murder  or  of  man- 
slaughter, necessarily  involves  two  things  essentially  distinct,  —  the  act 
of  the  party  killing,  as  the  cause  of  the  death,  and  the  death  of  the 
partv  killed,  as  the  effect  of  such  act  Both  are  necessary  to  consti- 
tute the  crime.  But  it  is  obvious  that  the  act  of  the  party  killing  may 
take  place  in  one  jurisdiction,  the  death  of  the  party  killed  in  another. 
A  person  may  be  wounded  on  the  sea,  and  may  die  on  the  shore,  or 
vice  versa.  He  may  be  wounded  in  England  ;  he  may  die  in  Scotland. 
In  which  is  the  offence  committed?  As  the  blow  was  struck  in  the  one, 
while  the  death,  without  which  the  offence  is  not  complete,  took  place  in 
the  other,  I  answer,  in  neither ;  and  the  old  authorities  who  held  at 
common  law,  before  the  difficulty  arising  from  divided  jurisdictions  had 
been  got  over  by  express  legislation,  that  where  the  wound  was  in- 
flicted on  the  sea.  and  the  person  struck  died  on  the  shore,  or  vice  versa 
—  or  where  the  wound  was  inflicted  in  one  county,  and  the  death  took 
place  in  another — the  offender  could  be  tried  in  neither,  because  in 
neither  had  the  entire  offence  been  committed  —  reasoned,  in  my  opin- 
ion, logically,  and,  in  point  of  principle,  rightly.  These  cases  are  not, 
however,  in  point  to  the  one  before  us,  and.  if  I  advert  to  them,  it  is 
only  to  clear  the  way  as  I  advance.  We  have,  in  this  instance,  not 
the  case  of  the  blow  or  wound  in  one  jurisdiction,  and  the  death  in 
another ;  but,  as  in  Reg.  v.  Coombe,  1  Lea.  Cr.  C.  388,  one  in  which 
the  act  causing  the  death  begins  in  one  jurisdiction  and  extends  into 
another,  in  which  it  inflicts  the  blow  or  wound,  from  which,  as  its  cause, 
death  ensues.  When  a  man  strikes  a  blow  with  a  club,  or  inflicts  a 
wound  by  the  thrust  of  a  sword,  or  the  stab  of  a  knife,  or  blows  out 
another's  brains  by  putting  a  pistol  to  his  head,  the  act  takes  effect 
immediatelv.  If  he  hurls  a  stone,  or  discharges  a  bullet  from  a  gun  or 
pistol  at  another  person,  at  a  distance,  the  instrument  he  uses  passes 
from  him  ;  the  stone  or  bullet,  having  left  his  hand,  has  to  make  its 
wav  through  a  given  space  before  it  strikes  the  blow  it  is  intended  to 


CHAP.  XXI.]  EEGINA   V.   KEYS.  917 

inflict.     Bat  the  blow  is  as  much  the  act  of  him  who  casts  the  stone. 
or  fires  the  gun,  as  though  it  had  taken  effect  iao mediately.    In  such 
a  case  the  act,  in  lieu  of  taking  effect  immediateh',  is  a  continuing  act 
till  the  end  has  been  effected,  that  is,  till  the  missile  has  struck  the 
blow,  the  intention  of  the  party  using  it  accompanying  it  throagbout 
its  course.     The  act  must  be  taken  to  be  the  act  of  the  party  in  the 
effects  it  was  intended  to  produce,  till  its  agency  has  become  exhausted 
and  its  operation  has  ceased.     When,  therefore,  a  person  being  in  one 
jurisdiction  fires  a  shot  at  a  person  who  is  in  another,  as  was  the  case 
in  Reg.  v.  Coombe,  1   Lea.  Cr.  C.  388  ;  it  may  well  be  held  that  the 
blow  struck  by  the  bullet  is  an  act  done  in  the  jurisdiction  in  which  the 
bullet  takes  effect.     Whether   the   converse   of  the  proposition  will 
equally  hold  —  whether  it  can  equally  be  said  that  the  continuing  act 
is  not  done  in  the  jurisdiction  in  which  it  originates,  and  in  which  the 
missUe  is  set  in  motion  —  in  other  words,  whether  the  case  of  United 
States  V.  Davis,  2  Sumner,  482,  was  rightly  decided,  is  a  different  ques- 
tion, as  to  which  I  do  not  think  it  necessary  now  to  express  an  opinion 
bevond  saying  that,  should  the  question  aiise,  it  would  be  deser\'ing  of 
verv  serious  consideration.     It  is  enough  for  the  present  purpose  to 
sav  that  Reg.  v.  Coombe,  1  Lea.  Cr.  C.  388,  was,  m  my  opinion,  rightly 
decided  ;  and  I  think  the  same  pruaciple  would  apply  where  the  master 
of  a  vessel  purposely  ran  down  another,  and  by  so  doing  caused  the 
death  of  a  person  on  board.    For,  though  his  immediate  act  is  confined 
to  running  his  ship  against  the  other,  it  is,  nevertheless,  his  act  which 
causes  the  ship  run  down  to  sink.     It  is  as  much  his  act  which  c-auses 
the  death  of  the  person  drowned,  as  though  he  had  actually  thrown 
such  person  into  the  water.    If.  therefore,  the  defendant  had  pnri->05ely 
run  into  the  ••  Strathclyde,"  I  should  have  been  prepared  to  bold  that 
the  killing  of  the  deceased  was  his  act  where  the  death  took  place, 
and,  consequentlv,  that  the  act  — in  other  words,  the  offence  of  which 
he  has  been  con^^cted  —  had  been  committed  on  board  a  British  ship. 
Whether  the  same  principle  would  apply  to  a  case  of  ::-     -'     r-.ter, 
arisino-  from  the  running  down  of  another  ship  through  :    .   .         .or 
to  a  case  where  death  is  occasioned  by  the  careless  dischaige  of  a  gun, 
i^  a  verv  different  thins,  and  may,  indeed,   admit  of  senous  doubt 
For,  in  '*uch  a  case,  there  is  no  intention  accompanying  the  act  mto 
its  ulterior  consequences.    The  negligence  in  running  down  a  ship  may 
be  said  to  be  confined  to  the  improper  navigation  of  the  ship  occasion- 
in-  the  mischief;  the  party  guilty  of  such  negligence  is  ner. 
ally,  nor  in  intention,  and  thus  constructively,  in  the  ship  on  ■ — 

death  takes  place.  ,       •,      ,         •         r  ♦!./» 

But  let  us  assume  the  contrary,  let  us  take  the  dr^wnmg  oTihe 
deceased  to  have  been  the  act  of  the  defendant  done  on  boarda  Br^ 
i.h  vessel.  Is  this  conclusive  of  the  question?  By  no  mean^.  The 
.ubtle  ar-ument  which  wonld  extend  the  negligence  commuted  in  one 
Ihl  to  Siother  in  which  it  prepuces  its  effect,  fi^^^^^  JP^P^^^ 
answer  in  reasoning,  which,  though  perhaps  aL^  savoring  of  subtlety, 


918  REGINA    V.    KEYN.  [CHAP.  XXI. 

is  yet  directl}'  to  the  purpose,  and  must  not  be  overlooked.  For  the 
question  is  —  and  this  appears  to  me  to  have  been  lost  sight  of  in  the 
argument  —  not  whether  the  death  of  the  deceased,  which  no  doubt 
took  place  in  a  British  ship,  was  tlie  act  of  the  defendant  in  sucli  sliip, 
but  whether  the  defendant,  at  the  time  the  act  was  done,  was  himself 
within  British  jurisdiction.  But,  in  point  of  fact,  the  defendant  was,  at 
the  time  of  the  occurrence,  not  on  board  the  British  ship,  the  "  Strath- 
clyde,"  but  on  a  foreign  ship,  the  "  Franconia."  And  here  we  must 
remember  that,  ex  hypothesis  we  have  to  deal  with  the  case  on  the 
assumption  that  both  the  vessels  were  on  the  high  seas,  and  not  in 
British  waters.  But,  though,  as  we  have  just  seen,  an  act,  begun  in 
one  place  or  jurisdiction,  may  extend  into  another,  it  is  obvious  that  the 
person  doing  such  continuing  act  cannot  himself  be  at  the  time  in  both. 
A  man  who,  being  in  field  A.,  throws  a  stone  at  another,  who  is  in  field 
B.,  does  not  thereby  transfer  himself  to  the  latter.  A  man  who  fires  a 
shot  from  the  shore  at  one  who  is  on  the  sea  still  remains  on  the  shore, 
and  vice  versa.  One  who,  from  the  bank  of  a  river  dividing  two  teri-i- 
tories,  fires  a  rifle  shot  at  a  person  on  the  opposite  side,  cannot  be  said 
to  be  in  the  territory  where  the  shot  strikes  its  oliject.  One  who  from 
the  deck  of  a  vessel,  by  the  discharge  of  a  gun,  either  purposely  or 
through  neghgence,  kills  or  wounds  another,  is  not  thereby  transported 
from  the  deck  of  his  own  vessel  to  that  of  the  other.  But,  in  order  to 
render  a  foreigner  liable  to  the  local  law,  he  must,  at  the  time  the 
offence  was  committed,  have  been  within  British  territory  if  on  land, 
or  in  a  British  ship  if  at  sea.  I  cannot  think  that  if  two  ships  of  dif- 
ferent nations  met  on  the  ocean,  and  a  person  on  board  of  one  of 
them  were  killed  or  wounded  by  a  shot  fired  from  the  other,  the  person 
firing  it  would  be  amenable  to  the  law  of  the  ship  in  which  the  shot 
took  effect.  According  to  the  doctrine  of  Lord  Coke  in  Calvin's  case, 
7  Co.  Rep.,  protection  and  allegiance  are  correlative  :  it  is  onl}'  where 
protection  is  afforded  by  the  law  that  the  obligation  of  allegiance  to 
the  law  arises  ;  or,  as  I  prefer  to  put  it,  it  is  onl}'  for  acts  done  when 
the  person  doing  them  is  within  the  area  over  which  the  authority  of 
British  law  extends,  that  the  subject  of  a  foreign  state  owes  obedience 
to  that  law,  or  can  be  made  amenable  to  its  jurisdiction.  But  for  the 
opinion  expressed  by  my  Brother  Denman.  I  should  have  thought  it 
be3-ond  all  dispute  that  a  foreign  ship,  when  not  in  British  waters,  but 
on  the  high  seas,  was  not  subject  to  our  law.  Upon  this  point  I  had 
deemed  all  jurists  unanimous,  and  could  not  have  supposed  that  a 
doubt  could  exist.  Upon  what  is  the  contrary'  opinion  founded?  Sim- 
ply upon  expedienc}^  which  is  to  prevail  over  principle.  What,  it  is 
asked,  is  to  happen  if  one  of  3'our  officers,  enforcing  your  revenue  laws, 
should  be  killed  or  injured  b}'  a  foreigner  on  board  a  foreign  ship? 
What  is  to  happen  if,  a  British  and  foreign  ship  meeting  on  the  ocean, 
a  British  subject  should  be  killed  by  a  shot  fired  from  the  foreign  ship? 
In  cither  of  such  cases  would  not  the  foreigner  guilt}'  of  the  offence  be 
amenable  to  the  English  law?     Could  it  be   endured  that  he  should 


CHAP.  XXI.]  REGINA   V.    KEYN.  9|9 

escape  with  impunity?  If  bronglit  wilhin  tlic  reach  of  a  British  court 
of  justice,  could  he  not  be  tried  and  punished  for  the  offt-ncc,  and 
ought  he  to  be  permitted  to  escape  with  iMijxniity,  or  ought  be  not  to 
be  tried  and  punished  for  such  offence  ?  My  first  answer  is,  that  the 
alternative  is  fallacious.  He  will  not  escape  with  impunity.  He  will 
be  amenable  to  the  law  of  his  own  country,  and  it  is  not  to  he  nie- 
sumed  that  the  law  of  any  civilized  people  will  Ix;  sucli,  or  so  ndmin- 
istered,  as  that  such  an  oflcnce  should  escape  without  ita  adcqualo 
punishment.  As  regards  the  amenability  of  the  offender  under  such 
circumstances  to  our  law,  it  will  be  time  enough  to  determine  the  "pus- 
tion  when  the  case  arrives.  If  the  conviction  and  puni^limeni  of  th<.> 
offender  can  only  be  obtained  at  the  sacrifice  of  fiindainent:d  principh'* 
of  established  law,  I,  for  one,  should  prefer  that  justice  should  fail  in 
the  individual  case,  than  that  established  principles,  according  to, which 
alone  justice  should  be  administered,  should  be  wrested  and  strained 
to  meet  it.  I  think,  therefore,  that  it  is  not  enough  that  the  running 
down  the  "  Strathclyde,"  and  so  causing  the  death  of  the  deceased, 
can  be  said  to  have  been  the  act  of  the  defendant  on  board  the  latt<  r 
vessel,  unless  it  can  be  made  out  that  the  defendant  was  also  on  hoard 
of  it.  But  the  defendant  certainly  was  not  actually,  nor  do  I  think  — 
no  intention  on  his  part  having  accompanied  the  act  —  he  can  be  sai<l 
to  have  been,  in  any  sense,  constructively,  on  board  the  "  Stratlu-lyde." 
If,  therefore,  his  own  vessel  was  not  within  British  waters,  but  on  the 
high  seas,  he  owed  no  obedience  to  the  law  of  this  country,  and  cannot 
be  punished  for  an  infraction  of  it. 

In  the  case  of  United  States  v.  Davis,  2  Sumner,  4S2,  no  such  difB- 
culty  presented  itself.  Both  ships  were  in  the  harbor,  and  therefore 
in  the  water  of  the  local  state,  and  the  defendant  was  consequently 
amenable  to  the  local  law. 

I  am  aware  that  this  view  is  not  in  accordance  with  the  decision  in 
the  American  case  of  Adams  v.  The  People,  1  Comst.  (N.  Y.),  173. 
In  that  case  a  fraud  had  been  committed  at  New  York  by  the  defend- 
ant, a  citizen  of  the  State  of  Ohio,  and  residing  in  it.  through  an  agent, 
at  New  York,  who  was  wholly  innocent  and  ignorant  of  the  fraud. 
The  accused  set  up  as  a  defence  that  he  was  a  citizen  of  another  state, 
and  residing  in  it  when  the  alleged  offence  was  conunittcd,  and  there- 
fore not  subject  to  the  law  of  New  York  ;  but  the  objection  w.as  over- 
ruled, on  the  ground  that  a  criminal  act  done  through  the  instrumentality 
of  an  innocent  agent  is  in  law  the  act  of  the  principal,  wlio  m.iy  there- 
fore be  held  to  have  committed  the  offence  in  the  state  in  which  the 
act  was  done,  and,  being  found  in  that  state,  will  be  liable  to  be  there 
tried  and  punished. 

But  the  judgment  in  that  case  which,  by  the  way,  is  remarkable  for 
much  loose  reasoning  and  idle  talk  about  the  law  of  nature,  is  not,  to 
ray  mind,  at  all  satisfactory.  It  entirely  overlooks  what,  in  my  view, 
is  the  turning  point  in  the  case,  namely,  that  though  the  set  of  the 
accused  had  been  committed  within   the  jurisdiction,   the  defendant. 


920  REGINA   V.   KEYN.  [CHAP.  XXI. 

being  a  foreigner,  and  having  been  out  of  the  jurisdiction  when  the  act 
was  done,  owed  no  allegiance  to  the  law  of  New  York,  and  was  not 
punishable  under  it. 

Both  exceptions  taken  on  the  part  of  the  Crown  to  the  general  rule 
that  a  foreigner,  committing  an  otfence  out  of  the  jurisdiction  of  a 
country  which  is  not  his  own,  cannot  be  brought  to  trial  in  the  courts 
of  the  former,  thus  failing,  it  appears  to  me  that  the  general  rule  must 
prevail,  and  that  the  defendant,  having  been  a  foreign  subject,  on  board 
a  foreign  ship,  on  a  foreign  voyage,  and  on  the  high  seas  at  the  time 
the  offence  was  committed,  is  not  amenable  to  the  law  of  this  country ; 
that  there  was,  therefore,  no  jurisdiction  to  try  him,  and  that,  conse- 
quently, the  conviction  was  illegal  and  must  be  quashed.^ 

Coleridge,  C.  J.  I  agree  in  thinking  it  clear  that  unless  the  place 
where  the  offence  was  committed  was  part  of  the  realm  of  England 
locally,  or  unless  the  offence  itself  was  committed  on  board  a  British 
ship,  whether  the  British  ship  was  locally  within  the  realm  of  England, 
or  without  it,  the  conviction  cannot  stand.  But  first,  I  think  the 
offence  was  committed  within  the  realm  of  England  ;  and  if  so,  there 
was  jurisdiction  to  try  it.  Whether  there  was  any  jurisdiction,  and  if 
there  were,  what  particular  court  was  to  exercise  it,  are  two  separate 
questions  ;  and  I  am  here  concerned  only  with  the  former.  Now  the 
offence  was  committed  much  nearer  to  the  line  of  low-water  mark  than 
three  miles,  and,  therefore,  in  my  opinion,  upon  English  territory.  I 
pass  by  for  the  moment  the  question  of  the  exact  limit  of  the  realm  of 
England  beyond  low-water  mark.  I  am  of  opinion  that  it  does  go 
beyond  low-water  mark,  and  if  it  does,  no  limit  has  ever  been  sug- 
gested which  could  exclude  from  the  realm  the  place  where  this  offence 
was  committed.  But  for  the  difference  of  opinion  upon  the  bench 
and  for  the  great  deference  which  is  due  to  those  who  differ  from  me, 
1  should  have  said  it  was  impossible  to  hold  that  England  ended  with 
low-water  mark.  I  do  not  of  course  forget  that  it  is  freely  admitted 
to  be  within  the  competency  of  Parliament  to  extend  the  realm,  how  far 
soever  it  pleases  to  extend  it  by  enactments,  at  least  so  as  to  bind  the 
tribunals  of  the  country ;  and  I  admit  equally  freely  that  no  statute 
has  in  plain  terms,  or  by  definite  limits,  so  extended  it.  But,  in  my 
judgment,  no  Act  of  Parliament  was  required.  The  proposition  con- 
tended for,  as  I  understand,  is  that  for  any  act  of  violence  committed 
by  a  foreigner  upon  an  English  subject  within  a  few  feet  of  low-water 

1  Bramwell,  J.  A.,  Ldsh.  J.,  and  Sir  R.  Phtli.imore  delivered  opinions  concurring 
with  that  of  Cockbdrn,  C.  J. ;  Pollock,  B.,  and  Field,  J.,  also  concurred. 

Denman,  J.,  delivered  an  opinion  concurring  with  tiiat  of  Coleridge,  C.  J. 

Brett,  J. A.,  expressed  an  opinion  that  the  offence  was  not  committed  on  an  Eng- 
lish vessel,  but  that  the  court  had  jurisdiction  over  the  offence  because  of  the  place 
where  it  was  committed. 

The  other  judges  did  not  decide  whether  the  offence  was  committed  on  an  English 
vessel.  Of  them  Kelly,  C.  B.,  held  that  the  court  had  no  jurisdiction  over  the  place ; 
Amphlett,  J.  A.,  and  Grove  and  Lindley,  J  J ,  were  of  opinion  that  the  place  was 
within  the  territorial  jurisdiction  of  the  court.  —  Ed. 


CHAP.  XXI.]  REGINA   V.    KFVN.  02 1 

mark,  unless  it  happens  on  l^oanl  a  Hritish  sliip,  the  foreigner  cannot 
be  tried,  and   is   dispiinislial)le.     As  I  underhtund  Uic   pro|>obiliou,  it 
follows,  further,  that  even  if  the  Knglislj  suhjecl  In:  an  ollk-cr  of  Iho 
Crown,  and  the  violeuoe  is  committed  by  the  foreigner  iu  rci»ii»liiin  the 
English  officer  in  the   execution  of  dulieH  which  the  penul  or  jxihco 
laws  of  the  country  compel  hiui  to  perform,  hiwH  to  wliiih  it  in  ndiiiit- 
ted  this  country  has  for  a  series  of  years  subjected  her  coaul  wat4-r«, 
still  the  consecpience  is  the  same,  and  the  act  of  rehistance,  Uioiigh 
resulting  iu  the  death  of  the  oflicer,  unless  it  takes  place  ou  Iwanl  a 
British  ship,  cannot  be  made  the  subject  of  any  criminal  pnxirdiujj  to 
any  court  of  the  country  where  the  ollieer  has  been  oulr-nj-cd.     Thia 
it  is  said  has  always   been    the    law,  and    it  is  the  law   now.      The 
argument   ab    inconcenienti    is    perhaps   not   one   which   sound   logic 
recognizes,   and   a  startling  conclusion  does  not   always  show  that 
the  premises  from  which  it   follows  are  untenable.     lUit  the  incon- 
venience   here   is   so  grave,   and    tiie   conelusiuu    so  sturlling,  as  to 
make   it  reasonable,    I    thiuk,   to  say  that  the   burden  of  pr(Kjf  liea 
heavy  upon  those  who  disregard  the  incouvenieuce,  and  maintain  the 
conclusion.    Now  my  brothers  Brett  and  Lindlkv  have  shown  that  by 
a  consensus  of   writers,  without  one  single  authority  to  the  contrary, 
some  portion  of  the  coast  waters  of  a  country  is  consitlered  for  M*mc 
purposes  to  belong  to  the  country  the  coasts  of  wliich  they  wabh.     I 
concur  in  thinking  that  the  discrepancies  to  be  found  in  these  writers 
as  to  the  precise  extent  of  the  coast  waters  which  belong  to  a  country 
(discrepancies,  after  all,  not  serious  since  the  time  at  least  of  (Irotius) 
are  not  material  in  this  question  ;   because  they  all  agree  in  the  princi- 
ple that  the  waters,  to  some  point   beyond  low-water  mark,  belong  to 
the  respective  countries,  on  grounds  of  sense  if  not  of  necessity,  belong 
to  them  as  territory  of  sovereignty,  in  property,  exclusively,  so  that 
the  authority  of  France  or  Spain,  of  Holland  or  Kngland.  is  the  only 
authority  recognized  over  the  coast  waters  which  atljoin  these  coun- 
tries.   This  is  established  as  solidly  as,  by  the  very  nature  of  the  case, 
any  proposition  of   international  law  can  be.     Strictly  speaking,  in- 
ternational law  is  an  inexact  expression,  and  it  is  apt  to  mislead  if  its 
inexactness  is  not  kept  in  mind.      Law  implies   a   lawgiver,  and  a 
tribunal  capable  of  enforcing  it  and  coercing  its  transgressors.     Hiil 
there  is  no  common  lawgiver  to  sovereign  states;    and  no  tribunal  has 
the  power  to  bind  them  by  decrees  or  coerce  them  if  they  transjirens. 
The  law  of  nations  is  that  collection  of  usages  which  civdued  ht«te« 
have    agreed  to  observe   in   their  dealings  with  one  another.     N\  liat 
these  usages  are,  whether  a  particular  one  has  or  has  not  boon  agreed 
to,  must  be  matter  of  evidence.     Treaties  and  acts  of  state  are  but 
evidence  of  the  agreement  of  nations,  and  do  not,  m  tin-,  country  at 
least,  per  se  bind  the  tribunals.     Neither,  certainly,  does  a  consmsu^  o 
jurists  ;  but  it  is  evidence  of  the  agreement  of  nations  on  mtornat.onal 
points  ;  and  on  such  points,  when  they  arise,  the  Kngl.sh  courts  give 
effect,  as  part  of  English  law,  to  such  agreement.     HogarUmg  jun»l*. 


922  REGINA    V.    KEYN.  [CHAP.  XXL 

then,  in  the  light  of  witnesses,  it  is  their  competency  rather  than  their 
ability  which  most  concerns  us.  We  find  a  number  of  men  of  education, 
of  many  different  nations,  most  of  them  quite  uninterested  in  main- 
taining any  particular  thesis  as  to  the  matter  now  in  question,  agreeing 
generally  for  nearly' three  centuries  in  the  proposition  that  the  territory 
of  a  maritime  country  extends  be^'oud  low-water  mark.  I  can  hardly 
myself  conceive  stronger  evidence  to  show  that,  as  far  as  it  depends  on 
the  ao^reement  of  nations,  the  territory  of  maritime  countries  does  so 
extend.  For  myself  I  must  add  that,  besides  their  competency,  I  have 
the  greatest  respect  and  admiration  for  the  character  and  abilities  of 
such  of  these  writers  as  I  am  personally  familiar  with.  It  is  not  diffi- 
cult m  the  works  of  a  voluminous  writer,  or  indeed  of  any  writer,  nay, 
even  in  the  reported  judgments  of  great  judges,  to  find  statements 
exaggerated,  or  untenable,  beliefs  which  lapse  of  time  has  shown  to  be 
unwise,  prejudices  which  must  always  have  been  foolish.  But  these 
things  do  not  detract  from  the  just  authority  of  distinguished  men,  and, 
if  the  matter  were  to  be  determined  for  the  first  time,  I  should  not  hesi- 
tate to  hold  that  civilized  nations  had  agreed  to  this  prolongation 
of  the  territory  of  maritime  states,  upon  the  authority  of  the  writers 
who  have  been  cited  in  this  argument  as  laying  down  the  affirmative  of 
this  proposition.  But  it  is  not  now  to  be  done  for  the  first  time.  For 
from  the  two  judgments  to  which  I  have  already  had  occasion  to  refer 
it  sufficiently  appears  that  a  number  of  English  judges,  of  the  very 
highest  authority,  have  themselves  accepted  and  acted  upon  the  author- 
ity of  these  jurists.  Lord  Talbot,  Lord  Hardwicke,  Lord  Mansfield, 
Lord  Stowell,  and  Dr.  Lushington,  form  altogether  a  body  of  judges 
sufficient  to  support  the  authority  of  the  writers  upon  whom  they  relied. 
Furthermore,  it  has  been  shown  that  English  judges  have  held  repeat- 
edly that  these  coast  waters  are  portions  of  the  realm.  It  is  true  that 
this  particular  point  does  not  seem  ever  distinctly  to  have  arisen. 
But  Lord  Coke,  Lord  Stowell,  Dr.  Lushington,  Lord  Hatherley,  L.  C, 
Erie,  C.  J.,  and  Lord  Wensleydale  (and  the  catalogue  might  be  largely 
extended)  have  all,  not  hastily,  but  in  writing,  in  prepared  and  delilj- 
erate  judgments,  as  part  of  the  reasoning  necessary  to  support  their 
conclusions,  used  language,  some  of  them  repeatedly,  which  I  am 
unable  to  construe,  except  as  asserting,  on  the  part  of  these  eminent 
persons,  that  the  realm  of  England,  the  territory  of  England,  the 
property  of  the  State  and  Crown  of  England  over  the  water  and  the 
land  beneath  it,  extends  at  least  so  far  beyond  the  line  of  low  water 
on  the  English  coast  as  to  include  the  place  where  this  offence  was 
committed.  I  should  only  waste  time  if  I  were  to  go  through  again 
the  cases  which  my  learned  brothers  have  so  fully  and  so  accurately 
examined.  It  is,  I  presume,  competent  for  the  court  to  overrule  those 
cases ;  but  at  least  it  must  be  admitted  that  they  decide  as  much  as 
this.  It  is,  perhaps,  referring  to  weaker  authorities  in  order  to  sup- 
port stronger  ones  ;  but  I  will  add  that  the  English  and  American 
text  writers,  and  two  at  least  of  the  most  eminent  American  judges, 


CHAP.  XXr.]  REGINA   V.   KEYN.  '903 

Marshall  and  Story,  have  held  the  same  tliiiiLj.  Further,  nt  loant  in 
one  remarkable  instance,  the  iiritish  I'urliaiiuiit  has  (k-chirtd  an. I 
enacted  tliis  to  be  the  law.  In  the  present  rcijiu  two  fjiu-htiuuH  aro^.j 
between  Her  Majesty  and  the  Prince  of  Wales  au  to  the  proiwrty 
in  minerals  below  high-water  mark  around  the  coaHt  of  C'ornwnll. 
The  first  question  was  as  to  the  property  in  niineralH  between  hi-!i 
and  low-water  mark  around  the  coasts  of  that  county,  and  n«  to 
the  property  in  minerals  below  low-water  mark  won  by  an  cxteuHiun 
of  workings  begun  above  low-water  mark.  This  was  referred  by 
Lord  Chancellor  Cranworth  on  tlie  part  of  Iler  Majesty,  and  l)y  I^jnl 
Kingsdown,  the  then  Chancellor  of  the  Duchy,  on  tlie  part  of  tlic 
Prince  of  Wales,  to  the  arbitration  of  Sir  John  I'atteson.    Hi-  1 

led  to  the  passing  of  an  Act  of  Parliament.  And  a  further  (j: 
to  the  minerals  below  low-water  mark  was  referred  by  Lord  SeUwrne, 
then  Sir  Roundell  Palmer,  the  Queen's  Attorney-General,  and  .Sjr 
William  Alexander,  the  Attorney-General  to  the  Prince  of  WaleH,  to 
the  arbitration  of  Sir  John  Coleridge.  All  the  proceedings  in  l)olh 
references  were  in  writing,  and  by  the  kindness  of  Viscount  Portman, 
the  present  Lord  "Warden  of  the  Stannaries,  I  have  been  fin-nished  willi 
copies  of  the  whole  of  them.  As  might  be  e.iwpected  from  the  known 
characters  of  the  persons  who  drew  and  settled  all  the  statements  iu 
both  cases,  the  greatest  learning  and  ability  were  displayed  in  thcjn  ; 
most  of  the  authorities  cited  before  us  are  cited  in  the  argnmonts  on 
behalf  of  the  Crown  and  the  Prince  of  Wales,  and  some  others  of  con- 
siderable importance  not  cited  to  us  are  cited  there.  The  whole  argu- 
ment on  the  part  of  the  Crown  was  founded  on  the  proposition  that  the 
fundus  maris  below  low-water  mark,  and  therefore  beyond  thelimit.sof 
the  county  of  Cornwall,  belonged  in  property  to  the  Crown.  The 
Prince  was  in  possession  of  the  disputed  mines ;  he  had  worked  them 
from  land  undoubtedly  his  own,  and,  therefore,  unless  the  Crown  had 
a  right  of  property  in  the  bed  of  the  sea,  not  as  first  occupier,  for  the 
prince  was  first  occupier,  and  was  in  occupation,  the  Crown  must  have 
failed.  The  argument  on  behalf  of  the  Duchy  was  twofold:  first, 
that  all  which  adjoined  and  was  connected  with  the  County  of  Corn- 
wall passed  to  the  Dukes  of  Cornwall  under  the  terms  of  the  original 
grant  to  them  at  the  time  of  the  creation  of  the  Duchy  ;  and,  therefore, 
that  even  if  the  bed  of  the  sea  elsewhere  belonged  to  the  Crown,  it  h.ad 
passed  from  the  Crown  to  the  duke  in  the  seas  adjacent  to  Cornwall : 
secondly,  that  the  bed  of  the  sea  did  not  belong  to  the  Crown,  mx\ 
that  the  prince  was  entitled,  as  first  occupier,  to  the  mines  thereunder. 
I  pass  by,  as  not  relevant  to  the  present  inquiry,  the  argument  as  to 
the  property  in  the  soil  between  high  and  low  w.ater.  and  I  omit  Sir 
John  Patteson's  decision  on  that  point  in  favor  of  the  Ducliy  as  not 
material.     On  the  second  point  he  thus  expressed  himself :  — 

"  I  am  of  opinion,  and  so  decide,  that  the  right  to  the  mmi-raU 
below  low-water  mark  remains  and  is  vested  in  the  Crown,  althou-h 
those  minerals  may  be  won  by  workings  commenced  al>ovc  low-waur 
mark  and  extended  below  it." 


924  REGINA    V.    KEYN.  [CHAP.  XXI. 

And  he  recommended  the  passing  of  an  Act  of  Pailiament  to  give 
practical  effect  to  his  decision,  so  far  as  it  was  in  favor  of  the  Crown. 
The  Act  of  Parliament  accordingly  was  passed,  the  21  «fe  22  Vict. 
c.  109,  a  public  Act.  By  s.  2  it  is  not  merely  enacted,  but  declared 
and  enacted  as  follows  :  — 

"All  mines  and  minerals  lying  below  low-water  mark  under  the 
open  sea  adjacent  to  but  not  being  part  of  the  County  of  Cornwall  are, 
as  between  the  Queen's  Majesty,  in  right  of  her  Crown,  on  the  one 
hand,  and  His  Royal  Highness  Albert  Edward  Prince  of  Wales  and 
Duke  of  Cornwall,  in  right  of  his  Duchy  of  Cornwall,  on  the  other 
hand,  vested  in  Her  Majesty  the  Queen  in  right  of  her  Crown  as  part 
of  the  soil  and  territorial  possessions  of  the  Crown." 

A  subsequent  question  was  raised  as  to  minerals  in  the  beds  of 
estuaries  below  low-water  mark,  but,  so  to  speak,  intra  fauces  Cornu- 
hice ;  and  this  question,  which  arose  after  the  death  of  Sir  John 
Patteson,  was  referred  for  decision  to  Sir  John  Coleridge.  This  de- 
cision was  substantially  in  favor  of  the  Prince,  and  the  arguments  in 
the  former  case  were  repeated  before  him  ;  but  as  he  had  to  decide  the 
matter  after  the  passing  of  the  Act  of  Parliament,  and  in  truth  as  to  the 
construction  to  be  placed  upon  its  clauses,  it  is  not  material  to  refer 
in  detail  to  the  words  of  his  judgment  and  award.  It  is  true,  that  the 
particular  question  between  Her  Majesty  and  the  Prince  of  Wales, 
which  arose  in  respect  of  the  bed  of  the  sea  adjacent  to  the  county  of 
Cornwall,  could  not,  as  far  as  I  know,  arise  in  respect  of  the  bed  of 
the  sea  adjacent  to  any  other  county.  But  it  might  well  arise  between 
Her  Majesty  and  private  persons  all  round  the  British  islands.  The  sov- 
ereign stands  in  no  more  peculiar  relation  to  Cornwall  than  she  does  to 
Kent.  There  is  no  reason,  legal  or  otherwise,  as  far  as  I  am  aware, 
why  the  bed  of  the  sea  "  adjacent  to  but  not  part  of  the  county  of 
Cornwall"  should  be,  and  why  the  bed  of  the  sea  adjacent  to,  but  not 
part  of  the  county  of  Kent,  where  this  offence  was  coinmitted,  should 
vol  be  "  part  of  the  soil  and  territorial  possession  of  the  Crown,"  in 
the  words  of  the  Act  of  Parliament.  Parliament  did  but  apply  to  a 
particular  case,  in  order  to  settle  a  question  between  the  two  highest 
persons  in  the  state,  that  which  is  and  always  has  been  the  law  of  this 
country.  We  have  therefore  it  seems  the  express  and  definite  author- 
ity of  Parliament  for  the  proposition  that  the  realm  does  not  end  with 
low-water  mark,  but  that  the  open  sea  and  the  bed  of  it  are  part  of  the 
realm  and  of  the  territory  of  the  sovereign.  If  so  it  follows  that  Brit- 
ish law  is  supreme  over  it,  and  that  the  law  must  be  administered  by 
some  tribunal.  It  cannot,  for  the  reasons  assigned  by  ray  Brother 
Br^:tt,  be  administered  by  the  Judges  of  Oyer  and  Terminer ;  it  can 
be,  and  always  could  be,  by  the  Admiralty,  and  if  by  the  Admiralty, 
then  by  the  Central  Criminal  Court.  I  do  not  feel  much  pressed  by 
the  undoubted  fact  that  no  record  can  be  found  of  the  exercise  of  this 
particular  authority.  Cases  of  collision  are  not  often  the  subject  of 
criminal  inquiry,  they  do  not  often  happen  within  local  limits  so  as  to 


CHAP.  XXI.]  WILDENIIUS'S   CASE.  925 

raise  this  particular  question.  If  they  were  cases  of  wanton  violence 
they  would  in  former  days,  I  conceive,  have  been  very  Kuinmarily  din- 
posed  of.  Sometimes,  no  doubt,  the  fact  that  a  jurisdic-tion  hax  never 
been  exercised  is  a  strong  argument  against  the  exiKtence  of  the  juris 
diction  ;  but  the  force  of  this  argument  varies  with  circumHtamcH  ; 
and  though  undoubtedly  it  is  a  matter  to  bo  considered,  it  do«'h  not.  1 
think,  in  this  case  outweigh  tlie  arguments  which  establihh  jt«  oxiHtr 
ence.  On  the  wliole,  therefore,  1  am  of  opinion  on  tlie  firbt  i>oinl  lliat 
the  conviction  is  right.  T  am  of  the  same  opinion,  thougli  with  Home 
doubt,  upon  the  second,  that  is,  that  tlie  olfence  was  c(jnjmiltc«l  on 
board  an  English  ship.  If  this  had  been  nuu'der  it  would.  aK  I  under- 
stand tlie  law,  be  clear  that  the  offence  was  so  committed.  I  need  cite 
no  further  authority  than  the  case  of  ileg.  r.  Armstrong.  13  Cox  Cr. 
C.  184,  decided  in  1875,  by  my  lamented  brother  Archibald.  I  think 
I  follow,  and  I  am  sure  I  feel  the  weight  of,  the  rea.soning  which  has 
brought  the  Lord  Chief  Justice  to  the  opposite  conchi>i()n  on  this 
point.  But  on  the  whole,  though  not  without  some  hesitation,  I  cont-ur 
in  the  reasoning  of  my  brother  Denman,  and  I  think  the  same  rule 
should  apply  in  manslaughter  which  applies  in  murder.  And  on  the 
second  point,  therefore,  I  am  of  opinion  that  the  conviction  w.is  right 
and  should  be  affirmed.^ 


WILDENHUS'S  CASE. 
Supreme  Court  of  the  United  States.     188C. 

[Reported  120  U.  S.\.] 

This  appeal  brought  up  an  application  made  to  the  Circuit  Court  of 
the  United  States  for  the  District  of  New  Jersey,  by  Charles  Mali,  the 
"  Consul  of  His  Majestv  the  King  of  the  Belgians,  for  the  Stales  of 
New  York  and  New  Jersey,  in  the  United  States,"  for  himself  as  sueh 
consul,  '^and  in  behalf  of  one  Joseph  Wildenhus,  one  Gionvienme 
Gobnbosich,  and  one  John  J.  Ostenmeyer,"  for  the  release,  upon  a 
writ  of  habeas  corpus,  of  Wildenhus,  Gobnl)osich.  ami  Ostenmeyer 
from  the  custody  of  the  keeper  of  the  common  jail  of  Ihulson  County 
New  Jersey,  and  their  delivery  to  the  consul,  -  to  be  dea  t  w.tb 
according  to  the  law  of  Belgium."  The  facts  on  which  the  apphcat.on 
rested  were  thus  stated  in  the  petition  for  the  writ :  - 

-  Second.  That  on  or  about  the  sixth  day  of  October,  IHsf..  on 
board  the  Belgian  steamship  Noorrtland,  there  occurred  an  affray  Ijc- 
tween  the  said  Joseph  Wildenhus  and  one  Fijens  wherein  an.  whoroby 
it  is  charged  that  the  said  Wildenhus  stabbed  with  a  knife  and  .n.h.i..! 
upon  the  said  Fijens  a  mortal  wound,  of  wlmh  he  aAerwards  d,ed. 

"  Third.     That  the  said  Wildenhus  is  a  subject  of  the  Kingdom  of 

1  See  a  learned  article  upuu  this  case,  11  A.ner.  L.  lU-v.  f.2h.  -  Ku 


926  WILDEXIIUS'S    CASE.  [CHAP.  XXL 

Bt'lofium  and  has  his  domicil  therein,  and  is  one  of  the  crew  of  the  said 
steamship  Noordland,  and  was  such  when  the  said  affray  occurred. 

"  Fourth.  That  the  said  Fijens  was  also  a  subject  of  Belgium  and 
had  his  domicil  and  residence  therein,  and  at  the  time  of  the  said 
aflfraj',  as  well  as  at  the  time  of  his  subsequent  death,  was  one  of  the 
crew  of  the  said  steamship. 

"  Fifth.  That  at  the  time  said  affray  occurred  the  said  steamship 
Noordland  was  lying  moored  at  the  dock  of  the  port  of  Jersey  City,  in 
said  State  of  New  Jerse}'. 

"  Sixth.  That  the  said  affray  occurred  and  ended  wholl}-  below  the 
deck  of  the  said  steamship,  and  that  the  tranquillity  of  the  said  port  of 
Jersey  City  was  in  nowise  disturbed  or  endangered  thereby. 

'•  Seventh.  That  said  affray  occurred  in  the  presence  of  several 
witnesses  all  of  whom  were  and  still  are  of  the  crew  of  the  said  vessel, 
and  that  no  other  person  or  persons  except  those  of  the  crew  of  said 
vessel  were  present  or  near  by. 

"  Eighth.  Your  petitioner  therefore  respectfully  shows  unto  this 
honorable  court  that  the  said  affray  occurred  outside  of  the  jurisdiction 
of  the  said  State  of  New  Jersey. 

"  Ninth.  But,  notwithstanding  the  foregoing  facts,  yom  petitioner 
respectfully  further  shows  that  the  police  authorities  of  Jersey  City,  in 
said  State  of  New  Jersey,  have  arrested  the  said  Joseph  Wildenhus, 
and  also  the  said  Gionviennie  Gobnbosich  and  John  J.  Ostenmeyer,  of 
the  crew  of  the  said  vessel  (one  of  whom  is  a  quartermaster  thereof), 
and  that  said  Joseph  Wildenhus  has  been  committed  by  a  police  magis- 
trate, acting  under  the  authority  of  the  said  state,  to  the  common  jail 
of  the  county  of  Hudson,  on  a  charge  of  an  indictable  offence  under  the 
laws  of  the  said  State  of  New  Jersey,  and  is  now  held  in  confinement 
b}'  the  keeper  of  the  said  jail,  and  that  the  others  of  the  said  crew 
arrested  as  aforesaid  are  also  detained  in  custod}'  and  confinement  as 
-witnesses  to  testify  in  such  proceedings  as  may  hereafter  be  had  against 
the  said  Wildenhus." 

Mr.  Chief  Justice  Waite,^  after  stating  the  case  as  above  reported, 
delivered  the  opinion  of  the  court. 

By  §§  751  and  753  of  the  Revised  Statutes  the  courts  of  the  United 
States  have  power  to  issue  writs  of  habeas  corpus  which  shall  extend  to 
prisoners  in  jail  when  the}'  are  in  "  custody  in  violation  of  the  Constitu- 
tion or  a  law  or  treat}'  of  the  United  States,"  and  the  question  we  have 
to  consider  is,  whether  these  prisoners  are  held  in  violation  of  the  provi- 
sions of  the  existing  treaty  between  the  United  States  and  Belgium. 

It  is  part  of  the  law  of  civilized  nations  that  when  a  merchant  vessel 
of  one  country  enters  the  ports  of  another  for  the  purposes  of  trade, 
it  subjects  itself  to  the  law  of  the  place  to  which  it  goes,  unless  by 
treaty  or  otherwise  the  two  countries  have  come  to  some  different 
understanding  or  agreement ;    for,  as  was  said  by  Chief  Justice  Mar- 

1  The  arguments  and  part  of  the  opinion  are  omitted.  —  Eo. 


CilAP.  XXI.]  WILDENHUS'S   CASE. 


927 


shall  in  The  Exchange,  7  Cranch,  11.;,  Ml,  -  ,i  «„i.Kl  U-  olAiou.ly 
inconvenient  and  dangerous  to  society,  and  wouUl  suliject  Uie  Uiwh  to 
continual  iniVactiou,  and  the  goveininL-nt  to  ilegrudmion,  if  buch  . 
merchants  did  not  owe  temporary  and  local  alkgiuuc-,  and  wcrt-  not 
amenable  to  the  jurisdiction  of  the  country."  Iniifd  .">tatc»  i-.  Dicki-l- 
man,  1)2  U.  8.  o2U  ;  1  rhillimore's  int.  Law,  .'Ul  ed.  4H.i,  i  361 ';  Twim" 
Law  of  Nations  in  Time  of  Peace,  221),  §  LVj;  Creauy's  Int.  Lnw, 
167,  §  17G  ;  llalleck's  Int.  Law,  1st  ed.  171.  And  the  KngliHh  ju.ijre* 
have  uniformly  recognized  the  rights  of  the  courts  of  the  couiiir\  of 
which  the  port  is  part  to  punish  crimes  commilled  by  one  forc-i^iu-i  on 
another  in  a  foreign  merchant  ship,  lifginu  t-.  Cumiingham,  Hell  C. 
C.  72  ;  s.  c.  8  Cox  C.  C.  104  ;  Regina  v.  Anderson.  1 1  Cox  C  C.  11)8, 
204  ;  s.  c.  L.  K.  1  C.  C.  161,  165  ;  Regina  v.  Keyn,  18  Cox  C.  C.  401. 
486,  525  ;  s.  c.  2  Ex.  Div.  63,  161,  213.  As  the  owner  has  volunianly 
taken  his  vessel  for  his  own  i)rivatc  purposes  to  a  place  wiihin  the 
dominion  of  a  government  other  than  his  own,  and  from  which  he 
seeks  protection  during  his  stay,  he  owes  that  government  such  alle- 
giance for  the  time  being  as  is  due  for  the  protection  to  which  he 
becomes  entitled. 

From  experience,  however,  it  was  found  long  ago  liiat  it  would  be 
beneficial  to  commerce  if  the  local  government  wouUl  abstain  from 
interfering  with  the  internal  discipline  of  the  ship,  and  the  general  rejtu- 
lation  of  the  rights  and  duties  of  the  olllcers  and  crew  towards  the 
vessel  or  among  themselves.  And  so  by  comity  it  came  to  be  generally 
understood  among  civilized  nations  that  all  matters  of  di.scipline 
and  all  things  done  on  board  wliich  affected  only  the  vessel  or  those 
belonging  to  her,  and  did  not  involve  the  peace  or  digiuty  of  the 
countr}-,  or  the  tranquillity  of  the  port,  should  be  left  by  the  local  gov- 
ernment to  be  dealt  with  by  the  authorities  of  the  nation  to  which  the 
vessel  belonged  as  tlie  laws  of  that  nation  or  the  interests  of  its  com- 
merce should  require.  But  if  crimes  are  committed  on  board  of  a  char- 
acter to  disturb  the  peace  and  tranquillity  of  the  country  to  which  the 
vessel  has  been  brought,  the  offenders  have  never  by  comity  or  usage 
been  entitled  to  any  exemption  from  the  operation  of  the  local  laws  for 
their  punishment,  if  the  local  tribunals  see  (it  to  as.scrt  thuir  aulhurily. 
Such  being  the  general  public  law  on  this  subject,  treaties  and  con- 
ventions have  been  entered  into  by  nations  having  connnercial  iuUr- 
course,  the  purpose  of  which  was  to  settle  and  define  the  rights  and 
duties  of  the  contracting  parties  with  respect  to  each  other  in  these 
particulars,  and  thus  prevent  tlie  inconvenience  that  might  arise  from 
attempts  to  exercise  conflicting  jurisdictions. 

[The  learned  Chief  Justice  here  stated  the  terras  of  successive  con- 
ventions entered  into  between  the  United  States  and  f«r.'ign  nationt. 
and  proceeded  :  — ] 

It  thus  appears  that  at  first  i)rovision  was  made  only  fur  giving  con- 
suls police  authority  over  the  interior  of  the  shii)  and  juriMJiction  ia 
civil  matters  arising' out  of  disputes  or  differences  on  board,  that  is  to 


928  WILDENHUS'S  CASE.  [CHA?.  XXL 

say,  between  those  belonging  to  the  vessel.  Under  this  police  author- 
ity the  duties  of  the  consuls  were  evidently  confined  to  the  mainte, 
nance  of  order  and  discipline  on  board.  This  gave  them  no  power  to 
punish  for  crimes  against  the  peace  of  the  country.  In  fact,  they  were 
expressly  prohibited  from  interfering  with  the  local  police  in  matters  of 
that  kind.  The  cases  of  "The  Sally"  and  "The  Newton"  (Wheat. 
Interuat.  Law,  3d  ed.,  153),  are  illustrative  of  this  position.  That  of 
"  The  Sally"  related  to  the  discipline  of  the  ship,  and  that  of  "The 
Newton  "  to  the  maintenance  of  order  on  board.  In  neither  case  was 
the  disturbance  of  a  character  to  affect  the  peace  or  the  dignity  of  the 
country. 

In  the  next  conventions  consuls  were  simply  made  judges  and  arbi- 
trators to  settle  and  adjust  differences  between  those  on  board.  This 
clearly  related  to  such  differences  between  those  belonging  to  the  vessel 
as  are  capable  of  adjustment  and  settlement  by  judicial  decision  or  by 
arbitration,  for  it  simply  made  the  consuls  judges  or  arbitrators  in  such 
matters.  That  would  of  itself  exclude  all  idea  of  punishment  for  crimes 
against  the  State  which  affected  the  peace  and  tranquillity  of  the  port ; 
but,  to  prevent  all  doubt  on  this  subject,  it  was  expressly  provided  that 
it  should  not  apply  to  differences  of  that  character. 

Next  came  a  form  of  convention  which  in  terms  gave  the  consuls 
authority  to  cause  proper  order  to  be  maintained  on  board  and  to 
.decide  disputes  between  the  officers  and  crew,  but  allowed  the  local 
authorities  to  interfere  if  the  disorders  taking  place  on  board  were  of 
such  a  nature  as  to  disturb  the  public  tranquillity,  and  that  is  substan- 
tially all  there  is  in  the  convention  with  Belgium  which  we  have  now  to 
consider.  This  treaty  is  the  law  which  now  governs  the  conduct  of  the 
United  States  and  Belgium  towards  each  other  in  this  particular. 
Each  nation  has  granted  to  the  other  such  local  jurisdiction  within  its 
own  dominion  as  maj'  be  necessary  to  maintain  order  on  board  a  mer- 
chant vessel,  but  has  reserved  to  itself  the  right  to  interfere  if  the  dis- 
order on  board  is  of  a  nature  to  disturb  the  public  tranquillity. 

The  treaty  is  part  of  the  supreme  law  of  the  United  States,  and  has 
the  same  force  and  effect  in  New  Jersey  that  it  is  entitled  to  elsewhere. 
If  it  gives  the  consul  of  Belgium  exclusive  jurisdiction  over  the  offence 
which  it  is  alleged  has  been  committed  within  the  territory  of  New 
Jersey,  we  see  no  reason  why  he  may  not  enforce  liis  rights  under  the 
treaty  by  writ  of  habeas  corpxis  in  any  proper  court  of  the  United  States. 
This  being  the  case,  the  only  important  question  left  for  our  determina- 
tion is  whether  the  thing  which  has  been  done  —  the  disorder  that  has 
arisen  —  on  board  this  vessel  is  of  a  nature  to  disturb  the  public  peace, 
or,  as  some  writers  term  it,  the  "  public  repose  "  of  the  people  who  look 
to  the  state  of  New  Jersey  for  their  protection.  If  the  thing  done  — 
"  the  disorder,"  as  it  is  called  in  the  treaty  —  is  of  a  character  to  affect 
those  on  shore  or  in  the  port  when  it  becomes  known,  the  fact  that  only 
those  on  the  ship  saw  it  when  it  was  done  is  a  matter  of  no  moment. 
Those  who  are  not  on  the  vessel  pay  no  special  attention  to  the  mere 


CHAP.  XXI.]  WILDENHUS'y   CASE. 


929 


disputes  or  quarrels  of  the  seamen  wliile  on  bounl,  whether  lh»y  ok  ur 
under  deck  or  above.  Neither  do  they  as  a  rule  eare  for  uus  Ihin-  <l,.i.e 
on  board  which  relates  only  to  the  discipline  of  the  ship,  or  to  ih.-  pi.  - 
servation  of  order  and  authority.  Not  so,  however,  with  crin.eH  which 
from  their  gravity  awaken  a  public  interest  as  soon  as  they  U'como 
known,  and  especially  those  of  a  character  which  every  civilizi-d  nnlion 
considers  itself  bound  to  provide  a  severe  punishment  for  when  com- 
mitted within  its  own  jurisdiction.  In  such  cases  iixiuiry  is  certain  to 
be  instituted  at  once  to  ascertain  how  or  why  the  thin^i  was  done,  nnd 
the  popular  excitement  rises  or  falls  as  the  news  spreads  and  the  fa<lH 
become  known.  It  is  not  alone  the  publicity  of  the  act,  or  the  noisu 
and  clamor  which  attends  it,  that  fixes  the  nature  of  the  crime,  but  Iho 
act  itself.  If  that  is  of  a  character  to  awaken  public  interest  when  it 
becomes  known,  it  is  a  "  disorder  "  the  nature  of  which  is  to  afffct  ilie 
community  at  large,  and  consequently  to  invoke  tlie  i>ower  of  the  local 
government  whose  people  have  been  disturbed  by  what  was  done. 
The  very  nature  of  such  an  act  is  to  disturb  tlie  quiet  of  a  peaceful 
community,  and  to  create,  in  the  language  of  the  treaty,  a  "disorder" 
which  will  "  disturb  tranquillity  and  public  order  on  shore  or  in  the 
port."  The  principle  which  governs  the  whole  matter  is  this:  Dis- 
orders  which  disturb  only  the  peace  of  the  ship  or  those  on  board  are 
to  be  dealt  with  exclusively  by  the  sovereignty  of  the  home  of  the  ship, 
but  those  which  disturb  the  public  peace  may  be  suppressed,  and.  if 
need  be,  the  offenders  punished  by  the  proper  authorities  of  the  locnl 
jurisdiction.  It  may  not  be  easy  at  all  times  to  determine  to  which  of 
the  two  jurisdictions  a  particular  act  of  disorder  belongs.  Much  will  un- 
doubtedly depend  on  the  attending  circumstances  of  the  particular  case, 
but  all  must  concede  that  felonious  homicide  is  a  subject  for  the  local 
jurisdiction,  and  that  if  the  proper  authorities  are  proceeding  with  the 
case  in  a  regular  wa}',  the  consul  has  no  right  to  interfere  to  prevent  it 
That,  according  to  the  petition  for  the  habeas  corpus,  is  this  case. 

This  is  fully  in  accord  with  the  practice  in  France,  where  the  govern- 
ment has  been  quite  as  liberal  towards  foreign  nations  in  this  particular 
as  any  other,  and  where,  as  we  have  seen  in  the  cases  of  "  The  Sally  " 
and  '^The  Newton,"  by  a  decree  of  the  Council  of  State,  representing 
the  political  department  of  the  government,  the  French  courts  were  pre- 
vented from  exercising  jurisdiction.  But  afterwards,  in  1859,  in  the 
case  of  Jally,  the  mate  of  an  American  merchantman,  who  had  killed 
one  of  the  crew  and  severely  wounded  another  on  boar.l  the  ship  in  the 
port  of  Havre,  the  Court  of  Cassation,  the  highest  judicial  tribunal  of 
France,  upon  full  consideration  held,  while  the  Convention  of  IH^-l  w.hs 
in  force,  that  the  French  courts  had  rightful  jurisdiction,  for  reasons 
which  sufficiently  appear  in  the  following  extract  from  its  judgment : 

"  Considering  that  it  is  a  princii)le  of  the  law  of  nations  that  every 
state  has  sovereign  jurisdiction  throughout  its  territory  ; 

"Considering  that  by  the  terms  of  Article  3  of  the  Code  NaiK.lcoa 
the  laws  of  police  and  safety  bind  all  those  who  inhabit  French  terniory, 

59 


930  COMMONWEALTH   V.   MANCHESTER.  [CHAP.  XXI. 

and   that  consequently   foreigners,  even  transeimtes,  find  themselves 
subject  to  those  laws ; 

"  Considering  that  merchant  vessels  entering  the  port  of  a  nation 
other  than  that  to  which  they  belong  cannot  be  withdrawn  from  the 
territorial  jurisdiction,  in  any  case  in  which  the  interest  of  the  state  of 
which  that  port  forms  part  finds  itself  concerned,  without  danger  to 
good  order  and  to  the  dignity  of  the  government ; 

"  Considering  that  every  state  is  interested  in  the  repression  of 
crimes  and  offences  that  may  be  committed  in  the  ports  of  its  territory, 
not  only  by  the  men  of  the  ship's  company  of  a  foreign  merchant  vessel 
towards  men  not  forming  part  of  that  compan}',  but  even  by  men  of  the 
ship's  company  among  themselves,  whenever  the  act  is  of  a  nature  to 
compromise  the  tranquillity  of  the  port,  or  the  intervention  of  the  local 
authority  is  invoked,  or  the  act  constitutes  a  crime  by  common  law  " 
{droit  com7nun,  the  law  common  to  all  civilized  nations),  "  the  gravity 
of  which  does  not  permit  any  nation  to  leave  it  unpunished,  without 
impugning  its  rights  of  jurisdictional  and  territorial  sovereignt}-, 
because  that  crime  is  in  itself  the  most  manifest  as  well  as  the  most 
flagrant  violation  of  the  laws  which  it  is  the  dut}'  of  every  nation  to 
cause  to  be  respected  in  all  parts  of  its  territory."  1  Ortolan  Diplo- 
matic de  la  Mer  (4th  ed.),  pp.  455,  456  ;  Sirey  (K  S.),  1859,  p.  189. 
The  judgment  of  the  Circuit  Court  is  affirmed.^ 


COMMONWEALTH  v.  MANCHESTER. 
Supreme  Judicial  Court  of  Massachusetts.     1890. 

[Reported  152  Mass.  230.] 

Complaint  on  the  St.  of  1886,  c.  192,  §  1,  charging  that  the 
defendant,  while  commorant  of  Falmouth,  in  the  county  of  Barnstable, 
at  Falmouth,  on  July  19,  1889,  "  did  then  and  there  draw,  set,  stretch, 
and  use  a  purse  seine  for  the  taking  of  fish  in  the  waters  of  Buzzard's 
Bay,  within  the  jurisdiction  of  this  Commonwealth." 

Trial  in  the  Superior  Court,  before  Sherman,  J.,  who,  after  a  verdict 
of  guilty,  reported  the  case  for  the  determination  of  this  court,  in 
substance  as  follows. 

The  evidence  introduced  by  the  government  tended  to  show  that  the 
defendant  and  others,  who  were  citizens  of  Rhode  Island,  and  were 
oflScers  and  crew  of  the  fishing  steamer  "A.  T.  Serrell,"  on  the  day 
alleged,  were  engaged  in  drawing,  setting,  stretching,  and  using  a  purse 

1  For  cases  illustrating  the  peculiar  questions  of  jurisdiction  arising  between  the 
state  and  the  United  States  courts,  see  Tennessee  v.  Davis,  100  U.  S.  257  ;  In  re  Coy, 
127  U.  S.  731  ;  In  re  Neagle,  135  U.  S.  1 ;  Manchester  v.  Massachusetts,  139  U.  S. 
240.  —  Ed. 


CHAP.  XXI.]  COMMONWEALTH    v.    MANCHESTKR.  931 

seine  for  the  taking  of  fi.sh  in  tl»o  waters  of  B.izzard'H  hns  ■  that  a,« 
place  where  the  defendant  and  tl.c  otlu-rs  w.-re  ko  vu<^n»iu\\ -.^  u\^mi 
and  not  exceeding,  one  mile  and  a  quarter  fn„n  a  |...i,rt  on  Uie  nUon 
midway  from  the  north  line  of  tin-  tx.wn  of  Falnioiitl,  to  the  K.,iiih  lino 
thereof;  that  the  point  where  they  were  so  using  sai.l  noine  was  wiUiia 
that  part  of  Buzzard's  Hay  which  the  Ilnrhor  and  Land  ("..nnnis.i,„u-r. 
acting  under  the  provisions  of  section  2  of  chapter  I'M)  of  th,.  Art,  of 
the  year  1881,  had,  so  far  as  they  were  capul.k-  of  d..ing  »r>.  aMHign.d 
to  and  made  a  part  of  the  town  of  Falmouth  ;  that  the  defin.lant  and 
his  associates,  on  that  day  and  at  that  place,  caught  with  a  Rt-inc  a 
large  quantity  of  the  fish  called  menhaden  ;  that  in  .so  doing  no  fix.  d 
apparatus  was  used,  and  the  bottom  of  the  sea  was  not  cncroa*  h.  d 
upon  or  disturbed  ;  that  the  distance  between  the  headlunds  at  tl.o 
mouth  of  Buzzard's  Bay,  viz.  at  Westport  in  the  county  of  Brihtol  on 
the  one  side,  and  the  island  of  Cuttyhimk,  the  most  southerly  of  Uie 
chain  of  islands  lying  to  the  eastward  of  Buzzard's  Bay,  and  known  nn 
the  Elizabeth  Islands,  in  the  county  of  Dukes  County,  on  the  other  sid.-. 
was  more  than  one  and  less  than  two  marine  k-agues ;  and  thnl  tlii; 
distance  across  said  bay  at  the  point  where  the  acts  of  the  dert-iid.-n.t 
were  done  is  more  than  two  marine  leagues,  and  the  opixjsite  points 
are  in  different  counties. 

The  defendant  did  not  dispute  any  of  the  evidence  offered  bv  the 
government,  but  introduced  evidence  tending  to  show  that  it  wan 
impossible  to  discern  objects  across  from  one  headland  to  the  other  at 
the  mouth  of  Buzzard's  Bay  ;  that  the  steamer  was  of  Newport,  Hlicxle 
Island,  duly  enrolled  and  licensed  at  that  port  under  tlie  laws  of  the 
United  States  for  carrying  on  the  menhaden  fishery  ;  that  he  was  in 
the  emplo}'  of  a  firm  engaged  in  the  State  of  Rhode  Island  in  the  busi- 
ness of  seining  menhaden  to  be  sold  for  bait,  and  to  he  manufactured 
into  fish  oil  and  fertilizer ;  that  he  was  engaged  in  fishing  for  menhaden 
cnl}',  and  caught  no  other  fish  ;  that  menhaden  is  not  a  foo<l  fixh,  and 
is  only  valuable  for  the  purpose  of  bait  and  the  manufacture  of  fish  oil 
and  fertilizer ;  and  that  the  taking  of  menhaden  bj'  seining  dix's  not 
tend  in  an}'  way  to  decrease  the  quantity  and  variety  of  food  fishes. 

It  was  conceded  by  the  government  that  the  defendant  was  em- 
ployed upon  the  vessel  described  by  the  enrolment  and  license,  and  at 
the  time  of  the  commission  of  the  acts  complained  of  he  and  his  asso- 
ciates were  so  in  the  employ  of  the  vessel  described  in  the  license;  and 
that  the  defendant  could  not  be  convicted  if  the  St.  of  1N65,  c.  212, 
was  not  repealed  by  the  St.  of  1886,  c.  192. 

The  defendant  asked  the  judge  to  rule,  that,  notwithstanding  the  St. 
of  1886,  0.  192,  he  was  authorized  to  take  menhaden  by  the  use  of  the 
purse  seine  in  the  waters  of  Buzzard's  Bay  in  the  place  where  this  art 
was  committed  ;  that  that  statute  did  not  repeal  the  St.  of  1X6.'),  c.  212  ; 
that  the  defendant  might  lawfully  take  menhaden  by  the  use  of  tin- 
purse  seine  in  Buzzard's  Bay,  in  the  place  where  the  acta  complaint 
of  were  done ;  that  the  act  complained  of  was  on  the  high  scaa  and 


932  COMMONWEALTH   V.   MANCHESTER.  [cHaP.  XXI. 

without  the  jurisdiction'of  Massachusetts,  and  having  been  done  under 
a  United  States  license  for  carrying  on  this  fishery,  the  defendant  could 
not  be  held  as  a  criminal  for  violating  a  statute  of  this  Commonwealth  ; 
that  the  defendant  could  not  be  held  unless  the  act  complained  of  was 
done  and  committed  within  the  body  of  a  county  as  understood  at 
common  law;  that  the  statute  of  this  Commonwealth  prohibiting  under 
a  penalty  the  use  ot  nets  and  seines,  and  the  taking  of  fish  within  three 
miles  of  the  shore,  was  invalid,  especially  as  against  a  license  to 
fish  granted  under  the  laws  of  the  United  States ;  and  that  on  all  the 
evidence  the  defendant  could  not  be  convicted. 

The  judge  declined  so  to  rule,  and  instructed  the  jury  that  the  St.  of 
1865,  c.  212,  was  repealed  by  the  St.  of  1886,  c.  192;  that  if  they 
found  that  the  defendant  was  engaged  in  using  a  purse  seine  for  the 
taking  of  fish  of  any  kind  in  that  part  of  Buzzard's  Bay  which  was 
within  the  jurisdiction  of  the  Commonwealth  of  Massachusetts,  they 
would  be  authorized  to  convict  the  defendant ;  and  that  the  place 
where  the  acts  of  the  defendant  were  committed,  being  within  a  marine 
league  from  the  shore  at  low-water  mark,  was  within  the  jurisdiction 
of  the  Commonwealth. 

O.  A.  King  <£•  J.  F.  Jackson^  for  the  defendant. 

II.  C.  Bliss,  First  Assistant  Attorney- General,  for  the  Common- 
wealth. 

Field,  C.  J.  The  defendant  was  complained  of  for  taking  fish  by 
the  use  of  a  purse  seine  in  the  waters  of  Buzzard's  Bay,  within  the 
jurisdiction  of  this  Commonwealth.  It  appears  by  the  report,  that  the 
point  in  Buzzard's  Bay  where  the  seine  was  used  "was  within  that  part 
of  Buzzard's  Bay  which  the  Harbor  and  Land  Commissioners,  acting 
under  the  provisions  of  section  2  of  chapter  196  of  the  Acts  of  the 
year  1881,  had,  so  far  as  they  were  capable  of  doing  so,  assigned  to 
and  made  a  part  of  the  town  of  Falmouth  "  ;  that  the  distance  between 
the  headlands  at  the  mouth  of  Buzzard's  Bay  is  "  more  than  one  and 
less  than  two  marine  leagues ; "  and  that  "  the  distance  across  said 
bay  at  the  point  where  the  acts  of  the  defendant  were  done  is  more 
than  two  marine  leagues,  and  the  opposite  points  are  in  different 
counties."  The  place  "was  about,  and  not  exceeding,  one  mile  and 
a  quarter  from  a  point  on  the  shore  midway  from  the  north  line  of  the 
town  of  Falmouth  to  the  south  line  "  of  said  town.  Buzzard's  Bay  lies 
wholly  within  the  territory  of  Massachusetts,  having  Barnstable  Count}' 
on  the  one  side,  and  the  counties  of  Bristol  and  Plymouth  on  the  other. 
The  defendant  offered  evidence  that  he  was  fishing  for  menhaden  only, 
with  a  purse  seine,  and  that  the  bottom  of  the  sea  "  was  not  encroached 
upon  or  disturbed,"  and  that  "  it  was  impossible  to  discern  objects 
across  from  one  headland  to  the  other  at  the  mouth  of  Buzzard's  Bay  ;  " 
that  he  was  a  citizen  of  the  State  of  Rhode  Island,  and  that  the  vessel 
upon  which  he  was  employed,  and  in  connection  with  which  he  was 
using  the  seine,  belonged  to  Newport,  in  that  State,  and  had  been 
"  duly  enrolled  and  licensed  at  that  port  under  the  laws  of  the  United 
States  for  carrying  on  the  menhaden  fishery." 


CHAP.  XXr.]  COMMONWEALTH   V.    MANCHESTKR,  933 

It  was  contended  at  the  trial,  among  other  tilings,  that  the  St  of 
188G,  c.  192,  under  which  the  complaint  was  madr.  Iind  not  r(.-|>ealcd 
the  St.  of  1865,  e.  212  ;  but  thia  has  nol  Ihhmi  ar^ijui'd  in  ihiH  court  ll 
is  plain  that  the  St  of  1886,  c.  rj2,  wua  iuU-nded  lo  n-KiilaU«  Uie 
whole  subject  of  using  nets  or  seines  for  tiikinj?  liHh  in  llu-  waU-m  of 
Blizzard's  Bay,  and  that  by  implication  it  roiKuh-d  the  St.  «)f  ImCA, 
c.  212,  so  far  as  that  statute  related  to  the  taking  of  menhaden  by  ihe 
use  of  a  purse  seine  in  the  waters  <jf  that  bay.  The  principal  *jiie>»tion 
argued  here  is,  whether  the  place  where  the  acts  of  the  defendant  were 
done  was  within  the  jurisdiction  of  the  Commonwealth  of  .MaAiift- 
chusetts. 

The  Pub.  Sts.  c.  1,  §§  1,  2,  are  as  follows:  "Section   1.  The  terri- 
torial limits  of  this  Commonwealth  extend  one  marine  league  from  itii 
sea-shore  at  low-water  mark.     When  an  inlet  or  arm  of  the  wa  iloc« 
not  exceed  two  marine   leagues  in  width   between    its   hcadlanfU.   a 
straight  line  from  one  headland  to  the  other  is  equivalent  Uy  the  Hhore 
line.     Section  2.  The  sovereignty  and  jurisdiction   of   the   Common- 
wealth extend  to  all  places  within  the  boundaries  thereof;  subjeet  to 
the  rights  of  concurrent  jurisdiction  granted  over  places  ceded  to  th»? 
United  States."     The  Pub.  Sts.  c.  22,  §  1,  contain  the  following  pro- 
vision :  "The  boundaries  of  counties  bordering  on  the  sea  shall  extend 
to  the  line  of  the  Commonwealth,  as  defined  in  section  one  of  elm|>t^r 
one."     Section  11  of  the  same  chapter  is  as  follows:  "The  jurisdiction 
of  counties  separated  by  waters  within  the  jurisdiction  of  the  Common- 
wealth shall  be  concurrent  upon  and  over  such  waters."     The  St.  of 
1881,  c.  196,  which  has  been  referred  to,  is  as  follows:  "Section  1. 
The  boundaries  of  cities  and  towns  bordering  upon  the  sea  shall  extend 
to  the  line  of  the  Commonwealth,  as  the  same  is  defined  in  section  one 
of  chapter  one  of  the  General  Statutes.     Section  2.    The  Harbor  and 
Land  Commissioners  shall  locate  and  define  the  courses  of  the  Imundary 
lines  between  adjacent  cities  and  towns  bordering  ujwn  the  sea,  and 
upon  arms  of  the  sea,  from  high-water  mark  outward  U>  the  line  of  U.e 
Commonwealth,  as  defined  in  said  section  one.  so  that  the  same  shall 
conform   as   nearly  as  may  be  to  the  course  of  the  iK.undary  linen 
between  said  adjacent  cities  and  towns  on  the  land  ;  and  they  shall  file 
a  report  of  their  doings,  with  suitable  plans  and  exhibit*,  showing  U.e 
boundary  lines  of  any  town  by  them  located  and  defined,  in  the  regisln- 
of  deeds  in  which  deeds  of  real  estate  situated  in  such  town  arc  mjuin.! 
to  be  recorded,  and  also  in  the  office  of  the  Secret^iry  of  the  Common- 
wealth."    Sections  1  and  2  of  chapter  1  of  the  (ieneral  Statutes  .H.nt.n.n 
the  provisions  which  have  been  before  recited,  as  now  cont^me,!  u.  ii.« 
Pub.  Sts.  c.  1,  §§  1,  2,  and  c.  22,  §§  1,  H.     These  provisions  wer.^  (imi 
enacted  by  the  St.  of  1859,  c.  289.     Section  1  of  the  Rev  StM.  c.  I ,  w^ 
as  follows:  -The  sovereignty  and  juris.liction  of  ^''f.  ^;^""';"';''*;J 
extend  to  all  places  within  the  boundaries  thereof;  subject  only  to  surh 
rights  of  concurrent  jurisdiction  as  have  l>cen  or  may   >«  pranto.1  cncr 
any  places  ceded  by  the  Commonwealth  to  the  Lmted  SUU-h.      Tbe 


934  COMMONWEALTH   V.    JLA.NCHESTER.  [CHAP.  XXL 

r 

boundaries  of  the  Commonwealth  on  the  sea  were  first  exactly  defined 
by  the  St.  of  1859,  c.  289.  The  boundaries  of  the  territor}-  granted  by 
the  charter  of  the  Colony  of  New  Plymouth,  or  of  the  territory  included 
in  the  Province  Charter,  need  not  be  particularly  set  forth.  Buzzard's 
Bay  was  undoubtedly  within  the  territory  described  in  those  charters. 

By  the  definitive  treaty  of  peace  between  the  United  States  of 
America  and  Great  Britain,  "  His  Britannic  Majesty  acknowledges  the 
said  United  States,  viz.  New  Hampshire,  Massachusetts  Bay,  ...  to 
be  free,  sovereign,  and  independent  States ;  that  he  treats  with  them  as 
such ;  and  for  himself,  his  heirs  and  successors,  relinquishes  all  claims 
to  the  government,  proprietj',  and  territorial  rights  of  the  same,  and 
every  part  thereof."  8  U.  S.  Sts.  at  Large,  81.  If  Massachusetts  had 
become  an  independent  nation,  there  can  be  no  doubt,  we  think,  that 
her  boundaries  on  the  sea,  as  she  has  defined  them  b}'  the  statutes, 
would  be  acknowledged  by  all  foreign  nations,  and  that  her  right  to 
control  the  fisheries  within  these  boundaries  would  be  conceded.  It 
has  often  been  a  matter  of  controversy  how  far  a  nation  has  a  right  to 
control  the  fisheries  on  its  sea-coast,  and  in  the  bays  and  arms  of  the 
sea  within  its  territor}' ;  but  the  limits  of  this  right  have  never  been 
placed  at  less  than  a  marine  league  from  the  coast  on  the  open  sea ; 
and  bays  wholly  within  the  territory'  of  a  nation,  the  headlands  of  which 
are  not  more  than  six  geographical  miles  apart,  have  alwa^'s  been 
regarded  as  a  part  of  the  territory  of  the  nation  in  which  the}'  lie. 
More  extensive  rights  in  these  respects  have  been  and  are  now  claimed 
by  some  nations ;  but,  so  far  as  we  are  aware,  all  nations  concede  to 
each  other  the  right  to  control  the  fisheries  within  a  marine  league  of 
the  coast,  and  in  bays  within  the  territory  the  headlands  of  which  are 
not  more  than  two  marine  leagues  apart. 

In  the  proceedings  of  the  Halifax  Commission,  under  the  Treaty  of 
Washington  of  May  8,  1871,  where  it  was  for  the  interests  of  the 
United  States  to  claim  against  Great  Britain,  independently  of  treaties, 
as  extensive  rights  of  fishing  as  could  be  maintained,  the  claim  was 
stated,  in  the  answer  on  behalf  of  the  United  States,  as  follows :  "  It 
becomes  necessary  at  the  outset  to  mquire  what  rights  American  fish- 
ermen, and  those  of  other  nations,  possess,  independently  of  treat}', 
upon  the  ground  that  the  sea  is  the  common  property  of  all  mankind. 
For  the  purposes  of  fishing,  the  territorial  waters  of  ever}'  country 
along  the  sea-coast  extend  three  miles  from  low-water  mark ;  and 
beyond  is  the  open  ocean,  free  to  all.  In  the  case  of  bays  and  gulfs, 
such  only  are  territorial  waters  as  do  not  exceed  six  miles  in  width 
at  the  mouth  upon  a  straight  line  measured  from  headland  to  head- 
land. All  larger  bodies  of  water  connected  with  the  open  sea  form 
a  part  of  it.  And  whenever  the  mouth  of  a  bay,  gulf,  or  inlet  exceeds 
the  maximum  width  of  six  miles  at  its  mouth,  and  so  loses  the  character 
of  territorial  or  inland  waters,  the  jurisdictional  or  proprietary  line  for 
the  purpose  of  excluding  foreigners  from  fishing  is  measured  along  the 
shore  of  the  bay  according  to  its  sinuositieS;  and  the  limit  of  exclusion 


CHAP.  XXI.]  COMMONWEALTH   V.   MANCHESTER.  935 

is  three  miles  from  low-water  mark."     Documeiits  and  Proceedings  of 
the   Halifax   Commission    (Washington,    187H),  Vol.    I.   p.   120  ^irtih 
Cong.  2d  Sess.,  H.  R.  Ex.  Doc,  Nu.  8'J).     The  povernmont  of  Canada 
had  been  instructed  by  the  g(n'ernnicnt  of  Gre.-it  liritain,  on  April  I'J, 
1866,  "that  American  fishermen  shouhl  not  be  interfereil  with,  either 
by  notice  or  otherwise,  unless  found  within  three  miles  of  the  »h(.rr, 
or  within  three  miles  of  a  line  drawn  across  llio  mouth  of  a  l»av  or 
creek  which  is  less  than  ten  geogra[)hical  miles  in  width,  in  conformity 
with  the  arrangement  made  with  Fnmee  in  1839;"  but  aftrrwnrdH  the 
British  government  issued  instructions  "  that  the  United  Sutes  fliih- 
ermen  will  not  be  for  the  present  prevented  from  fishing,  except  willjin 
three  miles  of  land,  or  in  bays  which  are  less  tlian  six  miles  broad  at 
the  mouth."     Vol.  I.  pp.  V20,  121.     It  is  true  that  Mr.  Dana,  of  counM-l 
for  the  United  States,  contended,  in  argument  with  reference  to  tijc 
right  to  fish  in  the  open  sea,  "  that  the  deep-sea  fisherman,  pureuing 
the  free-swimming  fish  of  the  ocean  with  his  net  or  his  leaded  line,  not 
touching  shores  or  troubling  the  bottom  of  the  sea,  is  no  tn'.spa-sRcr, 
though  he  approach  within  three  miles  of  a  coast,  by  any  estaldishcd 
recognized  law  of  all  nations."     Vol.  II.  p.  1054.     This  contention, 
however,  did  not  touch  the  right  to  fish  in  bays  or  arms  of  the  sea,  and 
it  was  not  the  claim  actually  made  by  the  United  States  before  the 
Commission.     This  is  stated  in   the  answer  and   in  tlie  brief  of  Uie 
United  States.     The  answer  docs  not  allude  to  any  such  po.sition  as 
that  taken  by  Mr.  Dana  in  his  closing  argument,  but  in  the  brii-f  it  is 
said :    "  Many  authorities  maintain  that  whenever,  under  the  law  of 
nations,  any  part  of  the  sea  is  free  for  navigation,  it  is  likewise  free 
for  fishing  by  those  who  sail  over  its  surface.     But,  without  insisting 
upon   this   position,    the   inevitable   conclusion   is,  that   prior  to   the 
Treaty  of  Washington  the  fishermen  of  the  United  States,  as  well  as 
those  of  all  other  nations,  could  rightfully  fish  in  the  open  sea  more 
than   three   miles   from   the   coast,  and   could   also  fish  at  the  same 
distance  from  the  shore  in  all  bays   more  than  six   miles   in   width, 
measured  in  a  straight  line  from  headland  to  headland."     Vol.  I.  p.  1G6. 
The  counsel  for  the  defendant  in  the  case  at  bar  place  much  reliance 
upon  the  decision  in  The  Queen  v.  Keyn,  2  Ex.  D.  63.     In  that  case, 
the  defendant  was  the  officer  in  command  of  the  "  Franconia,"  a  Ger- 
man steamer,  which,  at  a  point  "  one  mile  and  nine  totilhs  of  a  mile 
S.  S.  E.  from  Dover  pier-head,  and  within  two  and  a  half  mdcs  from 
Dover  beach,"  in  the  English  Channel,  ran  down  and  sank  the  lirJtish 
steamer  "  Strathclyde,"  and  one  of  the  -  Strathclydc's "   passengers 
was  drowned.     The  defendant  was  indicted  jn  the  Central  Cnramal 
Court  for  manslaughter.     The  question  was  whether  the  offence  was 
committed  within  the  jurisdiction  of  the  admiralty,  the  Central  (  nmnxd 
Court  having  jurisdiction  to  hear  and  determine  any  offence  tiUv-^il 
-  to  have  been  committed  on  the  high  seas  or  other  places  wUhin  the 
jurisdiction  of  the  Admiralty  of  England  "  (p.  100).     A  majority  of  U.o 
court  held  that  the  offence  was  committed  on  the  German   steamer, 


936  COMMONTTEIALTH    I'.    MAyCHESTEB.  [CHAP.  XXL 

and  not  on  the  British  steamer ;  and  that,  under  the  laws  then  er'st- 
ing,  there  was  no  admiralty  jurisdiction  over  an  offence  comraittet.1  by 
a  foreigner  on  a  foreign  ship  on  the  open  sea,  whether  within  or 
without  a  marine  league  fix)m  the  shore  of  England.  In  consequence 
of  this  decision,  Parhament  passed  the  St.  of  -11  and  42  Vict.  e.  73. 
By  that  Act  it  was  declared  that,  "for  the  purpose  of  any  offence 
declared  by  this  Act  to  be  within  the  jurisdiction  of  the  Admiral,  any 
part  of  the  open  sea  within  one  marine  league  of  the  coast,  measured 
from  low-water  mark,  shall  be  deemed  to  be  open  sea  within  the  terri- 
torial waters  of  Her  Majesty's  dominions." 

It  is  obvious  that  by  this  decision  the  court  did  not  attempt  to 
define  the  extent  of  the  dominion  of  Great  Britain  over  the  open  sea 
adjacent  to  the  coast,  but  only  the  extent  of  the  existing  admiralty 
jurisdiction  over  offences  committed  on  the  open  sea.  The  courts  of 
England  would  undoubtedly  enforce  any  Act  of  Parliament  conferring 
upon  them  jurisdiction  over  offences  committed  anywhere.  It  is 
equally  obvious  that  the  decision  has  nothing  to  do  with  the  right  of 
control  over  fisheries  in  the  open  sea,  or  in  bays  or  arms  of  the  sea. 
The  case  contains  a  great  deal  of  learning  upon  the  respective  limits 
of  the  common-law  jurisdiction  and  of  the  admiralty  jurisdiction  in 
England  over  crimes,  and  upon  the  boundaries  of  counties  In  England 
under  the  laws  then  existing.  These  distinctions  are  immaterial  in  the 
case  at  bar,  except  with  reference  to  the  contention  that  the  place 
where  the  acts  complained  of  were  done  was  within  the  admiralty 
jurisdiction  of  the  courts  of  the  United  States.  The  boundaries  of 
counties  in  Massachusetts  may  be  defined  by  statute,  and  they  may  be 
made  to  extend  over  all  the  territory  of  Massachusetts,  whether  it  be 
sea  or  land ;  and.  if  Massachusetts  has  a  right  to  control  the  fisheries 
in  Buzzard's  Bay,  offences  in  violation  of  the  regulations  which  the 
State  may  establish  can  be  tried  in  any  of  its  courts  upon  which  it  may 
confer  jurisdiction.  It  is  to  be  noticed,  however,  that  in  all  the  cita- 
tions contained  in  the  different  opinions  given  in  The  Queen  v.  Keyn, 
wherever  the  question  of  the  right  of  fishery  is  referred  to,  it  is  con- 
ceded that  the  control  to  the  extent  at  least  of  a  marine  league  belongs 
to  the  nation  on  whose  coast  the  fisheries  are.  The  ai-gument  of  Mr. 
Benjamin,  of  counsel  for  the  defendant,  is  not  contained  in  the  report 
of  the  case ;  but  from  the  statement  of  Mr.  Justice  Lindley,  found  on 
page  90  of  the  report,  it  seems  that  he  admitted  that  the  dominion  of 
a  State  over  the  seas  adjoming  its  shore  existed  for  the  purpose  of 
protecting  "  its  coasts  from  the  effects  of  hostilities  between  other 
nations  which  may  be  at  war,  the  protection  of  its  revenue  and  of  its 
fisheries,  and  the  preservation  of  order  by  its  police." 

In  Direct  United  States  Cable  Co.  v.  Anglo-American  Telegraph  Co, 
2  App.  Cas.  394,  it  became  necessary  for  the  Privy  Council  to  deter- 
mine whether  a  point  in  Conception  Bay,  Newfoundland,  more  than 
three  miles  from  the  shore,  was  a' part  of  the  territory  of  Newfound- 
land, and  within  the  jurisdiction  of  its  legislature.     It  appeared  that 


CHAP.  XXI]  COMMONWEALTH  V.   MANCHESTER.  937 

the  average  width  of  the  bay  -  is  about  fifWen  mil«,-  .ad  the  dbU»« 
between  the  headlands  is  -rather  more  than  twenty  miJe..-    L^ 

Blackburn,  in  dehvenng  the  opinion,  savs,  at  pao-e  416  •  "  T' ^ 

raised  in  this  case,  and  to  which  their  Lortlshii.8  confine 
ment,  is  as  tx)  the  territorial  dominion  over  a  bay  of  c-  a,a 

dimensions  such  as  those  of  Conception  Bav  aUve  .,  '  Xbe 

few  English  common-law  authorities  on  this  poiut  relate;  u>  Uie  qoe.tion 
as  to  where  the  l>oundar>-  of  c-ounties  ends,  and  the  exclusive  juri«l.c- 
tion  at  common  law  of  the  Court  of  Admirallv  begins  which  U  ihA 
precisely  the  same  question  as  that  under  consideration     "  ', 

is  obvious,  that  when  it  is  decided  that  any   bay  or  v 

particular  dimensions  is  or  may  be  a  part  of  an  English  couutv  and 
so  completely  withm  the  realm  of  England,  it  is  decided  that  a  similar 
bay  or  estuary  is  or  may  be  part  of  the  territorial  dominions  of  the 
country  possessing  the  adjacent  shore.*'  He  quotes,  at  p.igv  417  the 
well-known  language  of  Lord  Hale:  "That  arm  or  l.r.'inch''c»f  the  sea 
which  lies  within  the  fauces  terror,  where  a  man  may  reasonably 
disoerne  between  shore,  is.  or  at  least  may  be,  within  the  IxhIv  of  'a 
county,  and  therefore  within  the  jurisdiction  of  the  sheriff  or  coroner," 
and  comments  upon  its  indefiniteuess ;  and  then  cites  the  case  of 
Regina  v.  Cunningham.  Bell  C.  C.  72.  86.  and  says,  at  page  419.  that 
in  this  case,  ••  this  much  was  determined,  that  a  place  in  the  sea,  out 
of  any  river,  and  where  the  sea  was  more  than  ten  miles  wide,  was 
within  the  county  of  Glamorgan,  and  consequentlv,  in  even*  sense  of 
the  words,  within  the  territory  of  Great  Britain."  Apparently  be  was 
of  opinion  that,  by  most  of  the  text-writers  on  international  Isw.  Con- 
ception Bay  would  be  excluded  from  the  territory  of  Nov,  i, 

and  the  part  of  the  Bristol  Channel  which  in  Regina  r.  C :u 

was  decided  to  be  in  the  county  of  Glamorgan  would  be  excluded  from 
the  territory  of  Great  Britain  ;  but  he  decides  that  C'  :  llmv  is 

a  part  of  the  territory  of  Newfoundland,  because  the  .ovem- 

ment  has  exercised  exclusive  dominion  over  it.  with  the  at-^uitrscence 
of  other  nations,  and  it  has  been  declared  by  Act  of  Parliament  "  to  be 
part  of  the  British  territory,  and  part  of  the  country  made  subject  to 
the  Legislature  of  Newfoundland." 

We  regard  it  as  established  that,  as  between  nations,  the  minimum 
limit  of  the  territorial  jurisdiction  of  a  nation  over  tide  waters  is  a 
marine  league  from  its  coast,  and  that  bays  wholly  within  its  temtorj- 
not  exceeding  two  marine  leagues  in  width  at  the  mouth  are  within  this 
limit,  and  that  included  in  this  territorial  jurisdiction  is  the  right  of 
control  over  fisheries,  whether  the  fish  be  migratory,  free-swimming 
fish,  or  free- moving  fish  like  lobsters,  or  fish  attached  to  •  i 

in  the  soil.     The  open  sea  within  this  limit  is  of  course  sn'  .  e 

common  right  of  navigation  :  and  all  governments,  for  the  pnriose  of 
self-protection  in  time  of  war.  or  for  the  prevention  of  frauds  on  the 
revenue,  exercise  an  authority  beyond  this  limit  We  have  no  doubt 
that  the  British  Crown  will  claim  the  ownership  of  the  soil  in  the  b»j» 


938  COMMONWEALTH   V.   MANCHESTER.  [CHAP.  XXI. 

and  in  the  open  sea  adjacent  to  the  coast  of  Great  Britain,  to  at  least 
this  extent,  whenever  there  is  any  occasion  to  determine  the  ownership. 
The  authorities  are  collected  in  Gould  on  Waters,  Part  I.  cc.  1,  2,  and 
notes.  See  also  Neill  v.  Duke  of  Devonshire,  8  App.  Cas.  135  ;  Gam- 
mell  V.  Commissioners  of  Woods  and  Forests,  3  Macq.  419  ;  Mowat  v. 
McFee,  5  Sup.  Ct.  of  Canada,  66  ;  The  Queen  v.  Cubitt,  22  Q.  B.  D. 
622  ;  St.  46  &  47  Vict  c.  22.^ 

^  The  remainder  of  the  opinion  discusses  the  right  of  jurisdiction  as  between 
the  State  and  the  United  States.  Affirmed,  Manchester  v.  Massachusetts,  139  U.  S. 
240.  — Ed. 


CUaP.  XXII.]  KER   V.    ILLINUIB.  'Q30 


CHAPTER  XXTI. 
EXTRADITION. 

KER  V.  ILLINOIS. 
Supreme  Court  of  the  United  States.     1886. 

[Reported  119  (/.  S.  436.) 

Mr.  Justice  Miller  ^  delivered  the  opinion  of  the  court. 

This  case  is  brought  here  by  a  writ  of  error  to  the  Supreme  Court  of 
the  State  of  Illinois.  The  plaintiff  in  error,  Frederick  M.  Ker,  was 
indicted,  tried,  and  convicted  in  the  Criminal  Court  of  Co<jk  County,  in 
that  State,  for  larceny.  The  indictment  also  inchuU'd  chargts  ut 
embezzlement.  During  the  proceedings  connected  with  the  trial  the 
defendant  presented  a  plea  in  abatement,  which,  on  demurrer,  was 
overruled,  and  the  defendant  refusing  to  plead  further,  a  plea  of  not 
guilty  was  entered  for  him  according  to  the  statute  of  that  State,  )»y 
order  of  the  court,  on  which  the  trial  and  conviction  took  place. 

The  substance  of  the  plea  in  abatement,  which  is  a  very  long  one,  is, 
that  the  defendant,  being  in  the  city  of  Lima,  in  Peru,  after  the  ofTencos 
were  charged  to  have  been  committed,  was  in  fact  ki(liiap[X'd  and 
brought  to  this  country  against  his  will.  His  statement  is,  that,  appli- 
cation having  been  made  by  the  parties  who  were  injurc-d,  C.ovcrnor 
Hamilton,  of  Illinois,  made  his  requisition,  in  writing,  to  the  SecreUry 
of  State  of  the  United  States,  for  a  warrant  requesting  the  extradition  of 
the  defendant,  by  the  executive  of  the  Republic  of  Peru,  from  that  coun- 
try to  Cook  County;  that,  on  the  first  day  of  March,  IS^a,  the  Pns- 
ident  of  the  United  States  issued  his  warrant,  in  due  form,  din-it^d 
to  Henry  G.  Julian,  as  messenger,  to  receive  the  defen<iant  from 
the  authorities  of  Peru,  upon  a  charge  of  larceny,  in  compliance  with 
the  treaty  between  the  United  States  and  Peru  on  that  subject :  that  the 
said  Julian,  having  the  necessary  papers  with  him,  arrived  in  Mm.n.  but. 
without  presenting  them  to  any  orticer  of  the  Peruvian  government,  or 
making  any  demand  on  that  government  for  the  surn-nder  of  Kor, 
forcibly  and  with  violence  arrested  him,  placed  him  on  board  the  Unit<.-U 
States  vessel  "Essex,"  in  the  harbor  of  Callao,  kept  him  a  cl.we  pris- 
oner until  the  arrival  of  that  vessel  at  Honolulu,  where,  after  some 
detention,  he  was  transferred  in  the  same  forcible  manner  on  l>o.ard 
another  vessel,  to  wit,  the  "  City  of  Sydney,"  m  which  he  was  carnoU  t 

1  Part  of  the  opinion  only  is  giren. 


940  KER   V.   ILLINOIS.  [cHAP.  XXIL 

prisoner  to  San  Francisco,  in  the  State  of  California.  The  plea  then 
states,  that,  before  his  arrival  in  that  cit}',  Governor  Hamilton  had  made 
a  requisition  on  the  Governor  of  California,  under  the  laws  and  Consti- 
tution of  the  United  States,  for  the  delivery  up  of  the  defendant,  as  a 
fugitive  from  justice,  who  had  escaped  to  that  State  on  account  of  the 
same  offences  charged  in  the  requisition  on  Peru  and  in  the  indictment 
in  this  case.  The  requisition  arrived,  as  the  plea  states,  and  was  pre- 
sented to  the  Governor  of  California,  who  made  his  order  for  the  sur- 
render of  the  defendant  to  the  person  appointed  by  the  Governor  of 
Illinois,  namel}',  one  Frank  Warner,  on  the  25th  day  of  June,  1883. 
The  defendant  arrived  in  the  city  of  San  Francisco  on  the  9th  day  of 
July  thereafter,  and  was  immediately  placed  in  the  custody  of  Warner, 
under  the  order  of  the  Governor  of  California,  and,  still  a  prisoner,  was 
transferred  by  him  to  Cook  County,  where  the  process  of  the  Criminal 
Court  was  served  upon  him  and  he  was  held  to  answer  the  indictment 
already  mentioned. 

The  main  proposition  insisted  on  by  counsel  for  plaintiff  in  error  in 
this  court  is,  that  by  virtue  of  the  treaty  of  extradition  witii  Peru  the 
defendant  acquired  by  his  residence  in  that  country  a  right  of  asylum, 
a  right  to  be  free  from  molestation  for  the  crime  committed  in  Illinois, 
a  positive  riglit  in  him  that  he  sliould  only  be  forcibly  removed  from 
Peru  to  the  State  of  Illinois  in  accordance  with  the  provisions  of  the 
treaty,  and  that  this  right  is  one  which  he  can  assert  in  the  courts  of 
the  United  States  in  all  cases,  whether  the  removal  took  place  under 
proceedings  sanctioned  by  the  treaty,  or  under  proceedings  which  were 
in  total  disregard  of  that  treaty,  amounting  to  an  unlawful  and  unau 
thorized  kidnapping. 

This  view  of  the  subject  is  presented  in  various  forms  and  repeated 
in  various  shapes,  in  the  argument  of  counsel.  The  fact  that  this  ques- 
tion was  raised  in  the  Supreme  Court  of  Illinois  may  be  said  to  confer 
jurisdiction  on  this  court,  because,  in  making  this  claim  the  defendant 
asserted  a  right  under  a  treat}'  of  the  United  States,  and,  whether  the 
assertion  was  well  founded  or  not,  this  court  has  jurisdiction  to  decide 
it ;  and  we  proceed  to  inquire  into  it. 

There  is  no  language  in  this  treaty,  or  in  any  other  treaty  made  by 
this  country  on  the  subject  of  extradition,  of  which  we  are  aware, 
which  says  in  terms  that  a  party  fleeing  from  the  United  States  to 
escape  punishment  for  crime  becomes  thereby  entitled  to  an  asylum  in 
the  country'  to  which  he  has  fled  ;  indeed,  the  absurdit}-  of  such  a  prop- 
osition would  at  once  pi*event  the  making  of  a  treat}-  of  that  kind.  It 
will  not  be  for  a  moment  contended  that  the  government  of  Peru  could 
not  have  ordered  Ker  out  of  the  country  on  his  arrival,  or  at  any  period 
of  his  residence  there.  If  this  could  be  done  what  becomes  of  his  right 
of  asylum  ? 

Nor  can  it  be  doubted  that  the  government  of  Peru  could  of  its  own 
accord,  without  any  demand  from  the  United  States,  have  surrendered 
Ker  to  an  agent  of  the  State  of  Illinois,  and  that  such  surrender  would 


CHAP.  XXII.]  KER   V.    ILLINOIS.  941 

have  been  valid  within  the  dominions  of  I'cru.  It  is  idle,  tlicrefure,  lo 
claim  that,  either  by  express  terms  or  by  implication,  there  is  given  to  ti 
fugitive  from  justice  in  one  of  those  coimtricH  any  righl  lo  ix-maiii  and 
reside  in  the  other;  and  if  the  right  of  asylum  iiu-umh  imylhiiig,  it  lutibt 
mean  this.  The  right  of  the  govtMiimuiit  of  Peru  voluulurily  lo  give  a 
party  in  Ker's  condition  an  asylum  in  that  country,  \n  (luilc  a  diirereut 
thing  from  the  right  in  him  to  demand  and  insist  upon  .security  in  «ucU 
an  asylum.  The  treaty,  so  far  as  it  regulates  the  righl  ofaHshnn  at  all, 
is  intended  to  Hniit  tliis  right  in  llie  case  of  one  wi»o  is  proved  l4)  Ik-  a 
criminal  tleeing  from  justice,  so  that,  on  proper  demand  and  piueeedin^'s 
had  therein,  the  government  of  the  country  of  the  asylum  hhall  deliver 
him  up  to  the  country  where  the  crime  was  committed.  And  lo  ibis 
extent,  and  to  this  alone,  the  treaty  does  regulate  or  impose  u  reuine- 
tion  upon  the  right  of  the  government  of  the  country  of  llie  aHvlum  lo 
protect  tiie  criminal  from  removal  therefrom. 

In  the  case  before  us,  the  plea  shows,  that,  although  .Julian  went  lo 
Peru  with  the  necessary  papers  to  procure  the  extradition  of  Ker  under 
the  treaty,  those  papers  remained  in  his  pocket  and  were  never  brouglit 
to  light  in  Peru  ;  that  no  steps  were  taken  under  them  ;  and  tliat  .Julian, 
in  seizing  upon  the  person  of  Ker  and  carrying  him  out  of  the  U-rrilory 
of  Peru  into  the  United  States,  did  not  act  nor  profess  to  act  und«;r  llie 
treaty.  In  fact,  that  treaty  was  not  called  into  operation,  wa.s  not  relied 
upon,  was  not  made  the  pretext  of  arrest,  and  the  facts  show  that  it 
was  a  clear  case  of  kidnapping  within  the  dominions  of  Peru,  without 
any  pretence  of  authority  under  the  treaty  or  from  the  government  of 
the  United  States. 

In  the  case  of  United  States  v.  Rauscher,  just  decided.  119  V.S. 
407,  and  considered  with  this,  the  effect  of  extradition  proeee.lings 
under  a  treaty  was  very  fully  considered,  and  it  was  there  held,  that, 
when  a  party  was  duly  surrendered,  by  proper  proceediims,  under  the 
treaty  of  1842  with  Great  Britain,  he  came  to  this  country  eloilie<l  with 
the  protection  which  the  nature  of  such  proceedings  and  the  true  con- 
struction of  the  treaty  gave  him.  One  of  the  rights  with  which  he  was 
thus  elotlied.  both  in  regard  to  himself  and  in  good  faith  to  the  country 
which  had  sent  him  here,  was,  that  he  should  be  tried  for  no  other 
offence  than  the  one  for  which  he  was  delivered  under  the  extradiliun 
proceedings.  If  Ker  had  been  brought  to  this  country  hy  proceedings, 
under  the  treaty  of  1870-1874  with  Peru,  it  seems  probable,  from  the 
statement  of  the  case  in  the  record,  that  he  might  have  sueccHsfully 
pleaded  that  he  was  extradited  for  larceny,  and  convicted  hy  the  ver- 
dict of  a  jury  of  embezzlement ;  for  the  statement  in  the  plea  is,  thai 
the  demand  made  by  the  President  of  the  United  States,  if  it  h..d  iK-en 
put  in  operation,  was  for  an  extradition  for  larceny,  although  some 
forms  of  embezzlement  are  mentioned  in  the  treaty  as  subjects  of  cxln^- 
dition.  But  it  is  quite  a  ditferent  case  when  the  plaint,,  m  -'■-r  co"  - 
to  this  country  in  the  manner  in  which  he  was  ''••-'^''7;7;  ''  ' "^ 
with  no  nghts  which  a  proceeding  under  the  treaty  could  ha^c  feM^" 


942  KER   V.   ILLINOIS.  [CH^P.  XXIL 

him,  and  no  duty  which  this  country  owes  to  Peru  or  to  him  under  the 
treaty. 

We  think  it  very  clear,  therefore,  that,  in  invoking  the  iurisdiction 
of  this  court  upon  the  ground  that  the  prisoner  was  denied  a  right 
conferred  upon  him  b}'  a  treat}'  of  the  United  States,  he  has  failed  to 
establish  the  existence  of  any  such  right. 

The  question  of  how  far  his  forcible  seizure  in  another  countr}',  and 
transfer  bj-  violence,  force,  or  fraud,  to  this  country,  could  be  made  avail- 
able to  resist  trial  in  the  State  court,  for  the  offence  now  charged  upon 
him,  is  one  which  we  do  not  feel  called  upon  to  decide,  for  in  that  trans- 
action we  do  not  see  that  the  Constitution,  or  laws,  or  treaties,  of  the 
United  States  guarantee  him  any  protection.  There  are  authorities  of 
the  highest  respectability  which  hold  that  such  forcible  abduction  is  no 
sufficient  reason  why  the  part}'  should  not  answer  when  brought  witliin 
the  jurisdiction  of  the  court  which  has  the  right  to  try  him  for  such  an 
offence,  and  presents  no  valid  objection  to  his  trial  in  such  court. 
Among  the  authorities  which  support  the  proposition  are  the  following  : 
Ex  parte  Scott,  9  B.  &  C.  446  (1829)  ;  Lopez  &  Sattler's  Case,  1 
Dearsly  &  Bell's  Crown  Cases,  525  ;  State  v.  Smith,  1  Bailey,  So.  Car. 
Law,  283  (1829);  s.  c.  19  Am.  Dec.  679;  State  «.  Brewster,  7  Vt. 
U8  (1835)  ;  Dow's  Case,  18  Pa.  37  (1851);  State  v.  Ross  «fc  Mann, 
21  Iowa,  467  (1866)  ;  Ship  Richmond  v.  United  States  (The  Rich- 
mond), 9  Cranch,  102. 

However  this  ma}-  be,  the  decision  of  that  question  is  as  much  within 
the  province  of  the  State  court,  as  a  question  of  common  law,  or  of  the 
law  of  nations,  of  which  that  court  is  bound  to  take  notice,  as  it  is  of 
the  courts  of  the  United  States.  And  though  we  might  or  might  not 
differ  with  the  Illinois  court  on  that  subject,  it  is  one  in  which  we  have 
no  right  to  review  their  decision. 

It  must  be  remembered  that  this  view  of  the  subject  does  not  leave 
the  prisoner  or  the  government  of  Peru  without  remedy  for  his  unautho- 
rized seizure  within  its  territor}'.  Even  this  treaty  with  that  country 
provides  for  the  extradition  of  persons  charged  with  kidnapping,  and 
on  demand  from  Peru,  Julian,  the  party  wlio  is  guilty  of  it,  could  lie 
surrendered  and  tried  in  its  courts  for  this  violation  of  its  laws.  Tlie 
party  himself  would  probably  not  be  without  redress,  for  he  could  sue 
Julian  in  an  action  of  trespass  and  false  imprisonment,  and  the  facts 
set  out  in  the  plea  would  without  doubt  sustain  the  action.  Whether 
he  could  recover  a  sum  sufficient  to  justif}'  the  action  would  probably 
depend  upon  moral  aspects  of  the  case,  which  we  cannot  here  consider. 

We  must,  therefore,  hold  that,  so  far  as  any  question  in  which  this 
court  can  revise  the  judgment  of  the  Supreme  Court  of  the  State  of 
Illinois  is  presented  to  us,  the  judgment  must  be 

Affirmed. 


CHAP.  XXII.]  KENTUCKY   V.   DENNISON. 


913 


KENTUCKY  v.   DENNISON. 
Supreme  Court  of  the  United  States.     18C0. 

[Reported  24  Howard,  66] 

A  MOTION  was  made  in  behalf  of  the  State  of  Kontnckv,  bv  thfl 
direction  and  in  the  name  of  the  Governor  of  the  State,  for  a  rule  «>H  Uio 
Governor  of  Ohio  to  show  cause  why  a  mandamus  should  not  Ik-  wsuf«{ 
by  this  court,  commanding  him  to  cause  Willis  La;,'o,  n  fu<,'itivi'  fr-.m 
justice,  to  be  delivered  up,  to  be  removed  U>  the  State  of  Kcnttickv, 
having  jurisdiction  of  the  crime  with  which  lie  is  chnrj^ed. 

The  facts  on  which  this  motion  was  made  are  as  follows : 

The  grand  jury  of  Woodford  Circuit  Court,  in  the  State  of  Kentucky, 
at  October  term,  1859,  returned  to  the  court  the  following  indictment 
against  the  said  Lago  :  — 

WOODFORD  CIRCUIT  COURT. 
The  Commonwealth  o/Kentucki/  against  Willis  Lago,  free  man  of  color. 

The  grand  jury  of  Woodford  county,  in  the  name  and  by  the  authority 
of  the  Commonwealth  of  Kentucky,  accuse  Willis  Lago,  free  man  of 
color,  of  the  crime  of  assisting  a  slave  to  escape,  etc.,  cominittocl  as  fol- 
lows, namel}^ :  the  said  Willis  Lago,  free  man  of  color,  on  the  fourth 
day  of  October,  1859,  in  the  count}'  aforesaid,  not  having  lawful  claim, 
and  not  having  any  color  of  claim  thereto,  did  seduce  and  entice  Char- 
lotte, a  slave,  the  property  of  C.  W.  Nuckols,  to  leave  her  owner  and 
possessor,  and  did  aid  and  assist  said  slave  in  an  attempt  to  make  her 
escape  from  her  said  owner  and  possessor,  against  the  peace  and  dig- 
nity of  the  Commonwealth  of  Kentucky. 

W.  S.  Downey,  Com.  Atlomcy. 

On  the  back  of  said  indictment  is  the  following  indorsement : 

*'  A  true  bill ;  L.  A.  Berry,  foreman.  Returned  by  grand  jtiry, 
October  term,  1859." 

A  copy  of  this  indictment,  certified  and  authenticated,  according  to 
the  Act  of  Congress  of  1793,  was  presented  to  the  Governor  of  Ohio 
by  the  authorized  agent  of  the  Governor  of  Kentucky,  and  the  arrest 
and  delivery  of  the  fugitive  demanded. 

The  Governor  of  Ohio  referred  the  matter  to  the  Attorney-Gonfml 
of  the  State  of  Ohio,  for  his  opinion  and  advice,  and  received  from  him 
a  written  opinion,  upon  which  he  acted,  and  refused  to  arrest  or  deliver 
up  the  fugitive,  and,  with  his  refusal,  communicated  to  the  Governor 
of  Kentucky  the  opinion  of  the  Attorney-General,  to  show  the  grounds 
upon  which  he  refused.^ 

1  The  groand  of  refusal,  as  stated  by  the  Attorney-General,  wtw  thnt  '  the  ..fTrn.-o 
charged  does  not  rank  among  those  npon  which  the  constitutional  pn^viMon  wri*  id- 
tended  to  operate."  This  opinion,  arguments  of  counsel,  and  part  of  the  opinion  ol 
the  court,  are  omitted. 


944  KENTUCKY  1).   DENNISON.  [CHAP.  XXIL 

Tanet,  C.  J.  The  clause  of  the  Constitution  which  has  given  rise  to 
this  controvers}-  is  in  the  following  words  :  — 

"  A  person  charged  in  any  State  with  treason,  felonj',  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another  State,  shall,  on  de- 
mand of  the  executive  authority  of  the  State  from  which  he  fled,  be 
delivered  up,  to  be  removed  to  the  State  having  jurisdiction  of  the 
crime." 

Looking  to  the  language  of  the  clause,  it  is  difficult  to  comprehend 
how  any  doubt  could  have  arisen  as  to  its  meaning  and  construction. 
The  words,  "  treason,  felony,  or  other  crime,"  in  their  plain  and  obvious 
import,  as  well  as  in  their  legal  and  technical  sense,  embrace  every  act 
forbidden  and  made  punishable  by  a  law  of  the  State.  The  word 
"  crime  "  of  itself  includes  every  offence,  from  the  highest  to  the  lowest 
in  the  grade  of  offences,  and  includes  what  are  called  ''  misdemean- 
ors," as  well  as  treason  and  felony.  4  Bl.  Com.  5,  6,  and  note  3, 
Wendall's  edition. 

But  as  the  word  "crime  "  would  have  included  treason  and  felony,  with- 
out specially  mentioning  those  offences,  it  seems  to  be  supposed  that 
the  natural  and  legal  imi>ort  of  the  word,  by  associating  it  with  those 
offences,  must  be  restricted  and  confined  to  offences  already  known  to 
the  common  law  and  to  the  usage  of  nations,  and  regarded  as  offences 
in  every  civilized  community,  and  that  they  do  not  extend  to  acts  made 
offences  by  local  statutes  growing  out  of  local  circumstances,  nor  to 
offences  against  ordinary  police  regulations.  This  is  one  of  the  grounds 
upon  which  the  Governor  of  Ohio  refused  to  deliver  Lago,  under  the 
advice  of  the  Attorney-General  of  that  State. 

But  this  inference  is  founded  upon  an  obvious  mistake  as  to  the  pur- 
poses for  which  the  words  "treason  and  felony"  were  introduced. 
They  were  introduced  for  the  purpose  of  guarding  against  any  restric- 
tion of  the  word  "  crime,"  and  to  prevent  this  provision  from  being 
construed  by  the  rules  and  usages  of  independent  nations  in  compacts 
for  delivering  up  fugitives  from  justice.  According  to  these  usages, 
even  where  they  admitted  the  obligation  to  deliver  the  fugitive,  persons 
who  fled  on  account  of  political  ofl'ences  were  almost  always  excepted, 
and  the  nation  upon  which  the  demand  is  made  also  uniformly  claims  and 
exercises  a  discretion  in  weighing  the  evidence  of  the  crime,  and  the  char- 
acter of  the  offence.  The  policy  of  different  nations,  in  this  respect,  with 
the  opinions  of  eminent  writers  on  public  law,  are  collected  in  Wheaton 
on  the  Law  of  Nations,  171 ;  Foelix,  312  ;  and  Martin,  Verge's  edition, 
182.  And  the  English  government,  from  which  we  have  borrowed  our 
general  system  of  law  and  jurisprudence,  has  always  refused  to  deliver 
up  political  offenders  who  had  sought  an  asylum  within  its  dominions. 
And  as  the  States  of  this  Union,  although  united  as  one  nation  for 
certain  specified  purposes,  are  yet,  so  far  as  concerns  their  internal  gov- 
ernment, separate  sovereignties,  independent  of  each  other,  it  was  ob- 
viously deemed  necessary  to  show,  b}'  the  terms  used,  that  this  compact 
was  not  to  be  regarded  or  construed  as  an  ordinary  treaty  for  extradi- 


CHAP.  XXII.J  KENTUCKY    V.    DENXISON. 


945 


tion  between  nations  altogether  indepeii.k-nt  of  each  other,  hut  wan 
intended  to  embrace  political  otFcnces  against  the  sovereignty  of  ibe 
State,  as  well  as  all  otlier  crimes.  And  as  treason  was  also  a  '•  felon v," 
(4  Bl.  Com.,  94),  it  was  necessary  to  in.seit  thoj,L'  words,  to  »h<.w.' in 
language  that  conld  not  be  mistaken,  that  political  oiT.nd.-rrt  were  in- 
cluded in  it.  For  this  was  not  a  compact  of  peace  and  comity  between 
separate  nations  who  had  no  claim  on  each  other  for  mutual  i»ui»|>ort, 
but  a  compact  binding  tliem  to  give  aid  and  a.ssi.stance  U)  each  other  in 
executing  their  laws,  and  to  support  each  other  in  preserving,'  «.rd.  r  and 
law  within  its  confines,  whenever  such  aid  was  needed  and  refjuired  ;  for 
it  is  manifest  that  the  statesmen  who  framed  the  Constitution  were  fully 
sensible,  that  from  the  complex  character  of  the  government,  it  mniit 
fail  unless  the  States  mutually  supported  each  other  and  the  general 
government ;  and  that  nothing  would  be  nK)re  likely  to  di.sturb  it.s  |M-acf, 
and  end  in  discord,  than  permilling  an  offender  against  the  laws  of  a 
State,  by  passing  over  a  mathematical  line  which  divides  it  frmn  an- 
other, to  defy  its  process,  and  stand  ready,  under  the  protection  of  the 
State,  to  repeat  the  offence  as  soon  as  another  opportunity  olfered. 

Looking,  therefore,  to  the  words  of  the  Constitution  -  to  the  ol»viou8 
policy  and  necessity  of  this  provision  to  preserve  iiarmony  iK-tween 
States,  and  order  and  law  within  their  respective  l^orders,  and  to  its 
early  adoption  by  the  colonies,  and  then  by  the  Confederated  States, 
whose  mutual  interest  it  was  to  give  each  other  aid  and  support  when- 
ever it  was  needed  —  the  conclusion  is  irresistible,  tliat  this  compact 
engrafted  in  the  Constitution  included,  and  was  iutendetl  to  include, 
every  offence  made  punishable  by  the  law  of  the  State  in  which  it  waa 
committed,  and  that  it  gives  the  right  to  the  executive  authority  of  the 
State  to  demand  the  fugitive  from  the  executive  authority  of  the  State 
in  which  he  is  found  ;  that  the  right  given  to  "  demand  "  implies  that  it 
is  an  absolute  right;  and  it  follows  tliat  there  must  l)e  a  correlative 
obligation  to  deliver,  without  any  reference  to  the  character  of  the  crime 
charged,  or  to  the  policy  or  laws  of  the  State  to  wliicli  the  fugitive  \n^ 
fled. 

This  is  evidently  the  construction  put  upon  this  article  in  the  Ac-t  of 
Congress  of  1793,  under  whicli  the  proceedings  now  before  us  are  insti- 
tuted. It  is  therefore  the  construction  put  upon  it  almost  cotem|>o- 
raneously  with  the  commencement  of  the  government  itself,  and  when 
Washington  was  still  at  its  head,  and  many  of  those  who  had  assisttti 
in  framing  it  were  members  of  the  Congress  which  enactetl  the  law. 

The  Constitution  having  established  the  right  on  one  |)art  and  the 
obligation  on  the  other,  it  became  necessary  to  provide  by  law  the 
mode  of  carrying  it  into  execution.  The  Governor  of  the  State  could 
not,  upon  a  charge  made  before  him,  demand  the  fugitive :  for,  accord- 
ing to  the  principles  upon  which  all  of  our  institutions  are  fr>unde<i.  l»»« 
ex'ecutive  department  can  act  only  in  subordination  to  the  judicial 
department,  where  rights  of  person  or  property  are  conienieil.  and  lU 
duty  in  those  cases  consists  only  in  aiding  to  support  the  judical  pro- 
^  60 


946  KENTUCKY    r.    DE5NIS0N.  [CHAP.  XXII. 

cess  and  enforcing  its  authority,  when  its  interposition  for  that  purpose 
becomes  necessary,  and  is  called  for  by  the  judicial  department.  The 
executive  authority  of  the  State,  therefore,  was  not  authorized  by  this 
article  to  make  the  demand  unless  the  party  was  charged  in  the  regular 
course  of  judicial  proceedings.  And  it  was  equally  necessary  that  the 
executive  authority  of  the  State  upon  which  the  demand  was  made, 
when  called  on  to  render  his  aid.  should  be  satisfied  by  competent 
proof  that  the  party  was  so  charged.  This  proceeding,  when  duly 
authenticated,  is  his  authority  for  arresting  the  offender. 

This  dutv  of  providing  by  law  the  regulations  necessary  to  carry  this 
compact  iuto  execution,  from  the  nature  of  the  duty  and  the  object  in 
view,  was  manifestly  devolved  upon  Congress  ;  for  if  it  was  left  to 
the  States,  each  State  might  require  diA'ereut  proof  to  authenticate  the 
judicial  proceeding  upon  which  the  demand  was  founded ;  and  as  the 
duty  of  the  governor  of  the  State  where  the  fugitive  was  found  is,  in 
sucii  cases,  merely  ministerial,  without  the  right  to  exercise  either 
executive  or  judicial  discretion,  he  could  not  lawfully  issue  a  warrant 
to  arrest  an  individual  without  a  law  of  the  State  or  of  Congress  to 
authorize  it.  These  difficulties  presented  themselves  as  early  as  1791, 
in  a  demand  made  by  the  Governor  of  Pennsylvania  upon  the  Governor 
of  Virginia,  and  both  of  them  admitted  the  propriety  of  bringing  the 
subject  before  the  President,  who  immediately  submitted  the  matter  to 
the  consideration  of  Congress.  And  this  led  to  the  Act  of  1793,  of 
which  we  are  now  speaking.  All  difficulty  as  to  the  mode  of  authenti- 
cating the  judicial  proceeding  was  removed  by  the  article  in  the  Consti- 
tution, which  declares,  *•  that  full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceedings,  of  every  other 
State ;  and  the  Congress  may  by  general  laws  prescribe  the  manner  in 
which  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof."  And  without  doubt  the  provision  of  which  we  are  now  speak- 
ing—  that  is,  for  the  delivery  of  a  fugitive,  which  requires  official  com- 
munications between  States,  and  the  authentication  of  official  documents 

was  in  the  minds  of  the  framers  of  the  Constitution,  and  had  its 

influence  in  inducing  them  to  give  this  power  to  Congress.  And  acting 
upon  this  authority,  and  the  clause  of  the  Constitution  which  is  the 
subject  of  the  present  controversy,  Congress  passed  the  Act  of  1879, 
February  12,  which,  as  far  as  relates  to  this  subject,  is  in  the  following 
words  :  — 

'•  Section  1.  That  whenever  the  executive  authority  of  any  State  in 
the  Union,  or  of  either  of  the  Territories  northwest  or  south  of  the 
river  Ohio,  shall  demand  any  person  as  a  fugitive  from  justice  of  the 
executive  authority  of  any  such  State  or  Territory  to  which  such  per- 
son shall  have  fled,  and  shall,  moreover,  produce  the  copy  of  an  indict- 
ment found,  or  an  affidavit  made  before  a  magistrate  of  any  State  or 
Territorv  as  aforesaid,  charging  the  person  so  demanded  with  having 
committed  treason,  felony,  or  other  crime,  certified  as  authentic  by 
the  governor  or  chief  magistrate  of  the  State  or  Territory  from  whence 


CHAP.  XXII.]  KZyXUCKY   T.    DESKISOW.  947 

the  person  so  charged  fled,  it  bball  V>e  the  duty  of  th*  i»Tf<mtiT*  fcult»or 
ity  of  the  State  or  Territory  to  which  sucb  person  bLmll  Imve  rlcd  U»  caub« 
him  or  her  to  be  arrested  and  secured,  and  notice  of  the  iirro»l  to  f* 
given  to  the  executive  authority  making  such  <lemand.  or  Uj  the  agrtit 
of  such  authority  appointed  to  receive  the  fugitive,  and  to  csum;  the 
fugitive  to  be  delivered  to  such  agent  when  he  Hb&ll  apijcar  ;  bat  if  no 
such  agent  shall  appear  within  six  months  from  Uie  time  of  the  arrvat. 
the  prisoner  may  be  discharged.     And  all  costs  or  • 
in  the  apprehending,  securing,  and   transmitting  h>. 
State  or  Territory  making  such  demand  shall  be  paid  by  such  >taie  or 
Territory. 

"  Section  2.     And  be  it  further  enacted,  That  any  aeent,  appointed 
as  aforesaid,  who  shall  rec-eive  the  fugitive  into  hi' 
empowered  to  transport  him  or  her  to  the  State  or  1  •  i 

he  or  she  shall  have  fled  ;  and  if  any  person  or  persons  suaii  oy  fort^ 
set  at  liberty  or  rescue  the  fugitive  from  such  agent  while  tranhi»orting 
as  aforesaid,  the  person  or  pversons  so  offending  shall,  on  conviction,  be 
fined  not  exceeding  five  hundred  dollars,  and  be  imprisoned  not  exceed- 
ing one  year.'' 

It  will  be  observed,  that  the  judicial  acts  which  are  necessary  to 
authorize  the  demand  are  plainly  specified  in  the  Act  of  Congress  ;  and 
the  certificate  of  the  executive  authority  is  made  conclusive  as  to  their 
verity  when  presented  to  the  executive  of  the  State  where  the  fugitive 
is  found.  He  has  no  right  to  look  behind  them,  or  to  question  th-  m. 
or  to  look  into  the  character  of  the  crime  specifieil  in  this  j;. 
ceeding.  The  duty  which  he  is  to  perform  is,  as  we  have  alri:. 
merelv  ministerial.  —  that  is.  to  cause  the  party  to  be  arrested,  and  de- 
livered to  the  agent  or  authority  of  the  State  where  the  crime  was 
mitted.  It  is  said  in  the  argument,  that  the  executive  offlccr 
■whom  this  demand  is  made  must  have  a  discretionar}-  executive  pow.T, 
because  he  must  inquire  and  decide  who  is  the  person  demande<l.  But 
this  certainly  is  not  a  discretionary  duty  npon  which  he  is  to  exercise 
auv  iudsment,  but  is  a  mere  ministerial  duty  —  that  is.  to  do  the  art 
required  to  be  done  by  him.  and  such  as  every  marshal  and  sh.  ritTmusl 
perform  when  process,  either  criminal  or  civil,  is  placed  in  his  h.nn.is  v> 
be  served  on  the  person  named  in  it.  And  it  never  has  l>een  sup|-.^l 
that  this  duty  involved  any  discretionary  power,  or  made  him  anMhmg 
more  than  a  "mere  ministerial  officer  :  and  such  is  the  position  ami  char- 
acter of  the  executive  of  the  State  under  this  law,  when  the  demand  a 
made  upon  him  and  the  requisite  evidence  produce*!  The  Goremnr 
has  onlv  to  issue  his  warrant  to  an  agent  or  officer  to  arrest  the  party 
named  in  the  demand.  . 

The  question  which  remains  to  be  examined  is  a  grave  and  impor- 
tant one.     When  the  demand  w<is  made,  the  proofs  requirwi  hv  the  Act 
of  1793  to  support  it  were  exhibited  to  the  Governor  of  <  • 
certified  and  authenticated  ;  and  the  objection  made  to  thf 
the  indictment  is  altogether  untenable.     Kentucky  has  an  ai 


948  KENTUCKY   V.   DENNISON.  [CHAP.  XXIL 

right  to  regulate  the  forms  of  pleading  and  process  in  her  own  courts, 
in  criminal  as  well  as  civil  cases,  and  is  not  bound  to  conform  to  those 
of  an}'  other  State.  And  whether  the  charge  against  Lago  is  legally 
and  sufficiently  laid  in  this  indictment  according  to  the  laws  of  Ken- 
tucky, is  a  judicial  question  to  be  decided  by  the  courts  of  the  State, 
and  not  by  the  executive  authorit}'  of  the  State  of  Ohio. 

The  demand  being  thus  made,  tlie  Act  of  Congress  declares,  that  "  it 
shall  be  the  duty  of  the  executive  authority  of  the  State  "  to  cause  the 
fugitive  to  be  arrested  and  secured,  and  delivered  to  the  agent  of  the 
demanding  State.  The  words,  "  it  shall  be  the  duty,"  in  ordinary  legis- 
lation, imply  the  assertion  of  the  power  to  command  and  to  coerce 
obedience.  But  looking  to  the  subject-matter  of  this  law,  and  the  rela- 
tions which  the  United  States  and  the  several  States  bear  to  each  other, 
the  court  is  of  opinion,  the  words  "  it  shall  be  the  duty"  were  not  used 
as  mandatory  and  compulsory,  but  as  declaratory  of  the  moral  duty 
which  this  compact  created,  when  Congress  had  provided  the  mode  of 
carrying  it  into  execution.  Tlie  Act  does  not  provide  any  means  to 
compel  the  execution  of  this  dut}-,  nor  inflict  any  punishment  for  neglect 
or  refusal  on  the  part  of  the  executive  of  the  State ;  nor  is  there  any 
clause  or  provision  in  the  Constitution  which  arms  the  government  of  the 
United  States  with  this  power.  Indeed,  such  a  power  would  place  every 
State  under  the  control  and  dominion  of  the  general  government,  even 
in  the  administration  of  its  internal  concerns  and  reserved  rights.  And 
we  think  it  clear,  that  the  Federal  government,  under  the  Constitution, 
has  no  power  to  impose  on  a  State  officer,  as  such,  any  duty  whatever, 
and  compel  him  to  perform  it ;  for  if  it  possessed  this  power,  it  might 
overload  the  officer  with  duties  which  would  fill  up  all  his  time,  and  dis- 
able him  from  performing  his  obligations  to  the  State,  and  might  im- 
pose on  him  duties  of  a  character  incompatible  with  the  rank  and  dignity 
to  which  he  was  elevated  b}'  the  State. 

It  is  true  that  Congress  may  authorize  a  particular  State  officer  to 
perform  a  particular  duty  ;  but  if  he  declines  to  do  so,  it  does  not  fol- 
low that  he  may  be  coerced,  or  punished  for  his  refusal.  And  we  are 
very  far  from  supposing,  that  in  using  this  word  "  duty,"  the  states- 
men who  framed  and  passed  the  law,  or  the  President  who  approved 
and  signed  it,  intended  to  exercise  a  coercive  power  over  State  officers 
not  warranted  by  the  Constitution.  But  the  general  government  hav- 
ing in  that  law  fulfilled  the  duty  devolved  upon  it,  by  prescribing  the 
proof  and  mode  of  authentication  upon  which  the  State  authorities 
were  bound  to  deliver  the  fugitive,  the  word  "  duty  "  in  the  law  points 
to  the  obligation  on  the  State  to  carry  it  into  execution. 

It  is  true  that  in  the  early  days  of  the  government.  Congress  relied 
with  confidence  upon  the  co-operation  and  support  of  the  States,  when 
exercising  the  legitimate  powers  of  the  general  government,  and  were 
accustomed  to  receive  it,  upon  principles  of  comit}',  and  from  a  sense 
of  mutual  and  common  interest,  where  no  such  dut}'  was  imposed  by  the 
Constitution.     And  laws  were  passed  authorizing  State  courts  to  enter- 


CHAP.  XXII.]  KENTUCKY   V.    DENNISON. 


940 


tain  jurisdiction  in  proceedings  l.y  tho  I'.ntcd  States  to  recover  iM..,m|. 
ties  and  forfeitures  incurred  by  breaches  of  their  revenue  lawn  a,„l 
giving  to  the  State  courts  the  same  authoritv  with  the  Disiricl  (o.'.rt  of 
the  United  States  to  enforce  such  penalties  and  fiMfeitures.  and  rdno  the 
power  to  hear  the  allegations  of  parties,  and  t«.  tnk.-  pr.K.fs,  if  an  apph- 
cation  for  a  remission  of  the  penalty  or  furfeiture  should  l>e  n.adr, 
according  to  the  provisions  of  the  Acts  of  Congress.  An<l  these  i^wcnl 
were  for  some  years  exercised  by  State  tribunals,  readdy,  and  without 
objection,  until  in  some  of  the  States  it  was  declit)ed  becaunc  it  iiitr-r- 
fered  with  and  retarded  the  performance  of  duties  which  pro|KTly  lie- 
longed  to  them,  as  State  courts  ;  aixl  in  otiier  Statt-s,  douliLs  appear  to 
have  arisen  as  to  the  power  of  the  courts,  acting  under  the  authority  of 
the  State,  to  inflict  these  penalties  and  forfeitures  for  offences  against  tho 
general  government,  unless  especially  authorized  to  <lo  so  by  the  Suiw. 

And  in  these  cases  the  co-operation  of  the  States  was  a  niatt-r  <»f 
comity,  which  the  several  sovereignties  extended  to  one  another  for 
their  mutual  benefit.  It  was  not  regarded  by  either  party  as  an  obliga- 
tion imposed  by  the  Constitution.  And  the  Acts  of  Congress  confer- 
ring the  jurisdiction  merely  give  the  power  to  the  State  tribunals,  but 
do  not  purport  to  regard  it  as  a  duty,  and  thoy  leave  it  to  the  States  to 
exercise  it  or  not,  as  might  best  comport  with  their  own  sense  of  jus- 
tice, and  their  own  interest  and  convenience. 

But  the  language  of  the  Act  of  1793  is  very  different.  It  docs  not 
puri^ort  to  give  authority  to  the  State  executive  to  arrest  and  deliver 
the  fugitive,  but  requires  it  to  be  done,  and  the  language  of  the  law 
implies  an  absolute  obligation  which  the  State  authority  is  l><)und  to 
perform.  And  when  it  speaks  of  the  duty  of  the  Governor,  it  evidently 
points  to  the  duty  imposed  by  the  Constitution  in  the  clause  we  arc 
now  considering.  The  performance  of  this  duty,  however,  is  left  to 
depend  on  the  fidelity  of  the  State  executive  to  the  compact  entered 
into  with  the  other  States  when  it  adopted  the  Constitution  of  the 
United  States,  and  became  a  member  of  the  Union.  It  was  so  left  by 
the  Constitution,  and  necessarily  so  left  by  the  Act  of  170:^. 

And  it  would  seem  that  when  the  Constitution  was  framed,  and  when 
this  law  was  passed,  it  was  confidently  believed  that  a  sense  of  justice 
and  of  mutual  interest  would  insure  a  faithful  execution  of  this  consti- 
tutional provision  by  the  executive  of  every  State,  for  every  State  ha<l 
an  equal  interest  in  the  execution  of  a  compact  absolutely  essential  to 
their  peace  and  well-being  in  their  internal  concerns,  as  well  as  mem- 
bers of  the  Union.  Hence,  the  use  of  the  words  ordinarily  employcil 
when  an  undoubted  obligation  is  required  to  be  performed.  "  it  shall 
be  his  duty." 

But  if  the  Governor  of  Ohio  refuses  to  discharge  this  duty,  there  is 
no  power  delegated  to  the  general  government,  either  through  the  judi- 
cial department  or  any  other  department,  to  use  any  coercive  means  to 
compel  him. 

And  upon  this  ground  the  motion  for  the  inandaums  must  be  ovrr- 
ruled. 


950  JONES   V.   LEONAKD.  [CHAP.  XXII. 

JONES   V.   LEONARD. 
Supreme  Court  of  Iowa.     1878. 
{Reported  50  la.  106.] 

Seevers,  J.  The  learned  judge  of  the  Circuit  Court  discharged  the 
plaintiffs  from  custod}^  as  we  infer,  on  two  grounds :  First,  that  the 
plaintiffs  were  not  in  fact  fugitives  from  justice,  for  the  reason  that 
they  had  never  fled  ;  and,  second,  the  evidence  accompanying  the 
requisition  failed  to  show  they  were  such ;  and  appellees  mainly,  if  not 
entirely,  rely  thereon  for  an  affirmance.  It  is  not  claimed  the  plain- 
tiffs were  ever  even  temporarily  residents  of  the  State  of  Massachusetts. 
At  the  time  the  alleged  crime  was  committed  they  were  citizens  of  and 
residents  of  this  State. 

The  false  pretence  was  contained  in  a  letter  written  by  them  in  this 
State  to  certain  persons  in  Boston,  in  which  it  was  stated  they  owned  a 
large  amount  of  property  over  and  above  their  indebtedness,  by  means 
of  which  they  obtained  on  credit  certam  merchandise. 

The  Constitution  of  the  United  States  provides  that  "a  person 
charged  in  any  State  with  treason,  felon}-,  or  other  crime,  who  shall 
flee  from  justice  and  be  found  in  another  State,  shall,  on  demand  of  the 
executive  authority  of  the  State  from  which  he  fled,  be  delivered  up  to 
be  removed  to  the  State  having  jurisdiction  of  the  crime." 

It  is  provided  by  a  statute  of  this  State  that  the  requisition  of  the 
Governor  of  another  State  "shall  be  accompanied  by  sworn  evidence 
that  the  party  charged  is  a  fugitive  from  justice."     Code,  §  4174. 

The  sworn  evidence  accompanying  the  requisition  consisted  of  an 
affidavit  in  which  it  was  stated  the  plaintiffs  "  are  fugitives  from  justice." 
There  are  grave  doubts  whether  such  a  statement  constitutes  the  evi- 
dence required  by  the  statute.  Whether  the  plaintiffs  were  such  fugi- 
tives is  a  mixed  question  of  law  and  fact.  The  latter  being  stated  or 
ascertained,  a  legal  conclusion  would  follow  or  be  based  thereon.  In- 
stead of  stating  facts,  the  affidavit  states  nothing  more  than  the  legal 
conclusion  of  the  person  making  the  affidavit.  The  statute  requires 
the  Governor  to  determine  whether  or  not  the  person  or  persons  are 
fugitives  from  justice.  Sworn  evidence  is  to  be  submitted  to  him  to 
enable  him  to  do  so.  Such  evidence  may  be  in  the  form  of  affidavits. 
But  instead  of  any  facts  being  stated,  upon  which  an  independent  judg- 
ment could  be  formed,  the  Governor  must  have  relied  wholly  on  the 
legal  conclusion  of  another. 

It  seems  to  us  that  to  sanction  such  a  proceeding  would  be  establish- 
ing a  dangerous  precedent.  By  issuing  his  warrant  for  the  arrest 
of  the  plaintiffs  it  may  be  said  the  Governor  has  determined  this 
question.  But  this  does  not  conclude  all  inquiry  by  the  courts  as  to 
the  sufficiency  of  the  evidence  upon  which  his  conclusion  was  based. 
It  may  be  conceded  that  the  affidavit  was  prima  facie  sufficient,  ol 


CHAP.  XXIL]  JONES   V.    LEONARD. 


951 


rather  it  was  the  province  of  the  Governor  to  go  dcK^rtnlnc  liut  U.i. 
we  do  not  think  is  conclusive  upon  this  or  any  other  .,.,c-,miuM  coiuk-cU^,| 
with  the  extradition  of  the  citizen.  This  poU.t  will  he  further  ..oUct-d 
hereafter.  Conceding,  however,  tiiat  tlie  dctcnninatiou  of  Uie  Govcr- 
nor  is  conclusive  as  to  the  sufliciency  of  the  allidavit,  we  have  for 
determination  the  question  whether  the  pluiniiifs  are  in  fad  fiiLMiive* 
from  justice. 

Bouvier  defines  such  a  person  to  he  "  one  who,  having'  comniitu-d  a 
crime  in  one  jurisdiction,  goes  into  another  in  order  to  evade  tlie  law 
and  avoid  punishment"  (1  Bouvier's  Law  Dictionary,  .O.-il);  and  the 
Constitution  of  the  United  States  defines  such  person'to  Ik-  one  "  who 
shall  flee  from  justice." 

It  is  difficult  to  see  how  one  can  flee  who  stands  still.  That  there 
must  be  an  actual  fleeing  we  think  is  clearly  recognized  by  the  Conitli- 
tution  of  the  United  States.  The  words  "who  sliall  flee"  do  not 
include  a  person  who  never  was  in  the  country  from  which  he  is  naid 
to  have  fled. 

It  is  urged,  however,  that  the  plaintiffs  were  constructively  in  Mawsa- 
chusetts  at  the  time  the  crime  is  alleged  to  have  been  committed,  and 
that  they  have  constructively  fled  therefrom. 

In  The  People  v.  Adams,  3  Denio,  190,  it  was  held  that  a  person 
actually  a  resident  of  Ohio  could  commit  a  crime  in  New  York,  and 
upon  his  coming  voluntarily  into  the  last-named  State  he  could  be  there 
tried  and  convicted.  We  are  not  required  to  either  approve  or  disap- 
prove the  doctrine  laid  down  in  this  case,  and  it  will  be  presumed  the 
laws  of  Massachusetts  are  the  same  as  those  of  New  York  in  this 
respect.  In  the  cited  case  the  defendant  went  volimtarily  into  the 
State  of  New  York,  and  it  might  with  mucli  propriety  be  said  that, 
having  so  done,  he  was  amenable  to  the  laws  thereof. 

The  question  in  the  case  at  bar  is  very  different.  Granting  that  a 
crime  ma}'  be  thus  committed,  the  question  before  us  is  whether,  then, 
the  State  of  Iowa  is  bound  to  surrender  a  citizen  to  the  State  in  which 
the  crime  was  committed?  This  depends  upon  tlie  ol)ligation  in  this 
respect  imposed  by  the  Constitution  of  the  United  States.  Before  it 
can  be  said  there  is  such  an  obligation,  two  things  must  appear.  There 
must  be  — First,  a  crime  charged  ;  and,  second,  that  the  person  charged 
is  a  fugitive  from  justice;  that  is  to  say,  "that  he  has  tied  from  the 
State  in  which  he  is  charged  with  the  crime  to  escape  punishmcnL" 
Such  must  be  the  legal  effect  of  his  fleeing.  In  other  words,  he  must 
have  been  in  the  State,  committed  the  crime,  and  fled. 

The  Constitution  of  the  United  States  does  not  require  Iowa  to  sur- 
render, on  the  demand  of  a  sister  State,  as  a  fugitive  from  justice,  one 
who  only  constructively  has  fled  from  the  latter.  Ilurd  on  J/abcas 
Corpws  (2ded.),  612. 

If  the  decision  of  the  Governor  is  final  and  conclusive  as  to  this 
question,  it  must  be  so  as  to  all  questions  touching  the  extradition  of  a 
citizen  under  the  constitutional  provision  above  quoted.     Counsel  for 


952  LASCELLES   V.    GEORGIA.  [CHAP.  XXII. 

the  appellant  concede  there  are  cases  in  which  a  writ  of  habeas  coiyus 
ma}'  issue,  and  the  prisoner  be  discharged.  In  fact,  the  power  of  the 
courts  at  this  daj-  cannot  be  seriously  questioned.  Hurd  on  Habeas 
Corpus  (2d  ed.)  621 ;  In  the  matter  of  Manchester,  5  Cal.  237;  Ex 
parte  Smith,  3  McLean,  121. 

The  Governor  of  this  State  is  not  clothed  with  judicial  powers,  and 
there  is  no  provision  of  the  Constitution  or  laws  of  the  United  States  or 
of  this  State  which  provides  that  his  determination  is  final  and  conclu- 
sive in  the  case  of  the  extradition  of  the  citizen. 

In  the  absence  of  such  a  provision  we  hold  that  the  decision  of  the 
Governor  onl}'  makes  a  prima  facie  case  ;  that  it  is  competent  for  the 
courts,  in  a  proceeding  of  this  character,  to  inquire  into  the  correctness 
of  his  decision,  and  discharge  the  prisoner. 

Affirmed.'^ 


LASCELLES  v.   GEORGIA. 
Supreme  Court  of  the  United  States.     1893, 

[Reported  148  U.  S.  537.] 

This  case  was  brought  here  b}'  writ  of  error  to  the  Supreme  Court  of 
the  State  of  Georgia.  The  single  federal  question  presented  b}'  the 
record,  and  relied  on  to  confer  upon  this  court  the  jurisdiction  to  review 
the  judgment  of  the  Supreme  Court  of  Georgia,  complained  of  by  the 
plaintiff  in  error,  was  whether  a  fugitive  from  justice  who  has  been  sur- 
rendered by  one  State  of  the  Union  to  another  State  thereof  upon 
requisition,  charging  him  with  the  commission  of  a  specific  crime,  has, 
under  the  Constitution  and  laws  of  the  United  States,  a  right,  privilege 
or  immunity  to  be  exempt  from  indictment  and  trial  in  the  State  to 
which  he  is  returned,  for  any  other  or  different  offence  than  that  desig- 
nated and  described  in  the  requisition  proceedings,  under  which  he  was 
demanded  by  and  restored  to  such  State,  without  first  having  an  oppor- 
tunity to  return  to  the  State  from  which  he  was  extradited. 

The  facts  of  the  case  on  which  this  question  is  raised  were  briefly 
these:  In  Jul}',  1891,  two  indictments  were  regularlv  found  b}'  the 
grand  jury  of  the  county  of  Floyd,  State  of  Georgia,  against  the  plain- 
tiff in  error  under  the  name  of  Walter  S.  Beresford,  which  respectively 
charged  him  with  tlie  offence  "of  being  a  common  cheat  and  swindler," 
and  with  the  crime  of  "  larcen}'  after  trust  delegated,"  both  being  crim- 
inal acts  by  the  laws  of  Georgia,  and  alleged  to  have  been  committed 
in  the  count}'  of  Floyd.  At  the  time  these  indictments  were  found  the 
plaintiff  in  error  was  residing  in  the  State  of  New  York.  In  September, 
1891,  the  Governor  of  the  State  of  Georgia  made  a  requisition  on  the 
Governor  of  the  State  of  New  York  for  the  arrest  and  surrender  of  the 

1  Ace.  In  re  Mohr,  73  Ala.  503 ;  Hartraan  v.  Aveline,  63  Ind.  344.  —  Ed. 


CHAP.  XXII.]  LASCELLF.8   v.    GFOROIA. 


9r.3 


plaintiff  in  error  to  designated  offlcials  of  Ihi;  furmcr  Stair,  naming  him 
as  he  was  named  in  the  indictment,  Waller  S.  Ilore.Hfonl.  Jn  the 
requisition  as  well  as  in  the  warrant  for  hi»  arrest,  tlic  i.fT.-nnH  f..r 
which  his  rendition  was  demandt-d  wi-rc  Htat4-d  nn'l  d.M-imt.d  a* 
charged  in  •  the  iiidietmont.  After  hcint,'  arrcstvd,  in  |»iin»nnnee  of  llic 
warrant,  he  was  iluly  delivered  to  the  agent  of  the  Suite  of  (Iwjrgia. 
was  brought  to  the  county  of  Floyd  in  said  Slate,  and  there  dclivt-n-.! 
to  the  sheriflf  of  the  county,  liy  wliom  he  was  detnined  in  iho  county 
jail.  While  so  held,  and  before  trial  upon  either  of  the  indirtmenl*  oii 
which  the  requisition  proceedings  were  based,  the  grand  jury  of  the 
county,  on  Oct.  6,  1891,  found  u  new  indictment  against  huu  for  the 
crime  of  forgery,  naming  him  therein  as  Sidney  LaMcellea,  which  wm 
his  true  and  proper  name.  Tiiereafler  he  was  |)ut  u[>on  Iuh  trial  in  the 
Superior  Court  of  the  county  of  Floyd  upon  this  last  indietimnL 
Before  arraignment  he  moved  the  court  to  quash  said  indictment  "  on 
the  ground  that  he  was  being  tried  for  a  separate  and  dilTerenl  offence 
from  that  for  which  he  was  extradited  from  the  State  of  New  York  to 
the  State  of  Georgia,  without  first  bein^  allowed  a  reasonable  opi>ortim- 
it}'  to  return  to  the  State  of  New  York."  This  motion  was  overrule.l 
and  he  was  put  upon  trial.  Thereupon  he  filed  a  special  plea  settiii;^ 
forth  the  foregoing  facts,  and  averring  that  he  could  not  l»e  lawfully 
tried  for  a  separate  and  different  crime  from  that  for  which  be  was 
extradited.  This  plea  was  overruled,  and,  having  been  put  upon  his  trial 
under  the  indictment,  he  was  found  guilty  of  the  offence  charged.  Hih 
motion  for  a  new  trial  being  overruled  and  refused,  he  filed  a  bill  of 
exceptions,  and  carried  the  case  to  the  Supreme  Court  of  fJoorgia,  the 
court  of  highest  and  last  resort  in  that  State,  before  which  he  again 
asserted  his  exemption  from  trial  upon  the  indictment,  »ii-K)n  the 
grounds  stated  in  his  motion  to  quash  and  in  his  special  plea,  but  the 
Supreme  Court  of  Georgia  sustained  the  action  of  the  lower  court 
therein,  and  in  all  respects  affirmed  the  judgment  of  the  Su|>erior 
Court. 

Mr.  W.  W.  Vandiver  (with  whom  was  Mr.  L.  A.  Dean  on  the 
brief),  for  plaintiff  in  error.* 

Mr.  D.  B.  Hamilton  and  Mr  J.  M.  TerreU  filed  a  brief  for  defend- 
ant in  error;  but  the  court  declined  to  hear  them. 

Mr.  Justice  Jackson,  after  stating  the  case,  delivered  the  opinion  of 
the  court. 

The  plaintiff  in  error  prosecutes  the  present  writ  of  error  to  n-vjenr 
and  reverse  this  decision  of  the  Supreme  Court  of  Georgia,  claiming 
that  in  its  rendition  a  right,  privilege  or  immimity  secured  In  him 
under  the  Constitution  and  laws  of  the  United  States,  specially  sot  up 
and  insisted  on,  was  denied.  The  particular  right  claime«l  to  havo 
been  denied  is  the  alleged  exemption  from  indictment  and  trial  excvpl 
for  the  specific  offences  on  which  he  had  been  8urreDdcri>ti. 

1  The  argament  is  omitted. 


954  LASCELLES   V.    GEORGIA.  [CHAP.  XXII. 

The  question  presented  for  our  consideration  and  determination  is 
whether  the  Constitution  and  laws  of  the  United  States  impose  any 
such  limitation  or  restriction  upon  the  power  and  authorit}'  of  a  State 
to  indict  and  tr}'  persons  charged  with  offences  against  its  laws,  who 
are  brought  within  its  jurisdiction  under  interstate  rendition  proceed- 
ings. While  cases  involving  questions  of  international  extradition  and 
interstate  rendition  of  fugitives  from  justice  have  frequently'  been 
before  this  court  for  decision,  this  court  has  not  passed  upon  the  pre- 
cise point  here  presented.  The  second  clause  of  Section  2,  Article  4, 
of  the  Constitution  of  the  United  States  declares  that  "  a  person 
charged  in  any  State  with  treason,  felon}'  or  other  crime,  who  shall  flee 
from  justice  and  be  found  in  another  State,  shall,  on  demand  of  the 
the  executive  authority  of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  jurisdiction  of  the  crime."  To 
carr\'  this  provision  into  effect  Congress  passed  the  act  of  Feb.  12, 
1793,  1  Stat.  392,  c.  7,  the  first  and  second  sections  of  which  have 
been  re-enacted  and  embodied  in  sections  5278  and  5279  of  the  Revised 
Statutes  of  the  United  States,  prescribing  the  methods  of  procedure  on 
the  part  of  the  State  demanding  the  surrender  of  the  fugitive,  and  pro- 
viding that  "  it  shall  he  the  duty  of  the  executive  authority  of  the  State 
or  Territor}'  to  which  such  person  has  fled  to  cause  him  to  be  arrested 
and  secured,  and  cause  notice  of  the  arrest  to  be  given  to  the  executive 
authority'  making  such  demand,  or  to  the  agent  of  such  authority 
appointed  to  receive  tlie  fugitive,  and  to  cause  tlie  fugitive  to  be  deliv- 
ered to  such  agent  when  he  shall  appear,"  and  providing  further  that 
the  agent  "  so  appointed,  who  shall  receive  the  fugitive  into  his  cus- 
tody', shall  be  empowered  to  transport  him  to  the  State  or  Territory 
from  which  he  has  fled." 

Upon  these  provisions  of  the  organic  and  statutory  law  of  the  United 
States  rest  exclusivelj'  the  right  of  one  State  to  demand,  and  the  obli- 
gation of  the  other  State  upon  which  the  demand  is  made  to  surrender, 
a  fugitive  from  justice.  Now,  the  proposition  advanced  on  behalf  of 
the  plaintiff  in  error  in  support  of  the  Federal  right  claimed  to  have 
been  denied  him  is,  that,  inasmuch  as  interstate  rendition  can  only  be 
effected  when  the  person  demanded  as  a  fugitive  from  justice  is  duly 
charged  with  some  particular  offence,  or  offences,  his  surrender  upon 
such  demand  carries  with  it  the  implied  condition  that  he  is  to  be  tried 
alone  for  the  designated  crime,  and  that  in  respect  to  all  offences  other 
than  those  specified  in  the  demand  for  his  surrender,  he  has  the  same 
right  of  exemption  as  a  fugitive  from  justice  extradited  from  a  foreign 
nation.  This  proposition  assumes,  as  is  broadl}'  claimed,  that  the 
States  of  the  Union  are  independent  governments,  having  the  full  pre- 
rogatives and  powers  of  nations,  except  what  have  been  conferred  upon 
the  general  government,  and  not  only  have  the  right  to  grant,  but  do, 
in  fact,  afford  to  all  persons  within  their  boundaries  an  asylum  as 
broad  and  secure  as  that  which  independent  nations  extend  over  their 
citizens  and  inhabitants.     Having  reached,  upon  this  assumption  or  by 


CHAP.  XXII.]  LASCELLES  V.   GEORGIA-  955 

this  proeess  of  reasoning,  the  conclusion  tl>:it  llio  same  rule  should  l>c 
recognized  and  applied  in  interstate  renditiiju  as  in  foreign  extriuliiiou 
of  fugitives  from  justice,  the  decision  of  this  court  in  UniU-d  Suu-h  v. 
Rauscher,  119  U.  S.  407  et  seq.,  is  invoked  us  u  controlling  auUioritv 
on  the  question  under  consideration.     If  the  prrniisfs  on  which  this 
argument  is  based  were  sound,  the  conclusion  uiight  he  correct,     liut 
the  fallacy  of  the  argument  lies  in  the  assumption  thai  tl»«-  Stat«'H  of  the 
Union  occup}'  towards  each  other,  in  respect  to  fugiiiveb  fioni  juHiice, 
the  relation  of  foreign  nations,  in  the  same  sense  iu  which  the  general 
government  stands  towards  ind  pendent  sovereignties  on  that  suliject; 
and  iu  the  further  assumption  that  a  fugitive  from  justice  ac<juire8  in 
the  State  to  which  he  may  llee  some  state  or  personal   right  of  protec- 
tion, improperly  called  a  right  of  asylum,  which  secures  to  him  cxeinp- 
tion  from  trial  and  punishment  for  a  crime  committed  in  another  Slate, 
unless  such  crime  is  made  the  special  object  or  ground  of  his  remlition. 
This  latter  position  is  only  a  restatement,  in  another  form,  of  the  ques- 
tion presented  for  our  determination.     The  sole  object  of  th(;  provision 
of  the  Constitution  and  the  Act  of  Congress  to  carry  it  into  elfect  is  Ui 
secure  the  surrender  of  persons  accused  of  crime,  who  have  tied  from 
the  justice  of  a  State,  whose  laws  they  are  charged  with  violating. 
Neither  the  Constitution,  nor  the  Act  of  Congress  proviiling  for  the 
rendition   of  fugitives,  upon   proper  requisition  being  made,  confers, 
either  expressly  or  by  implication,  any  right  or  privilege  upon  such 
fugitives  under  and  by  virtue  of  which  they  can  assert,  in  the  Slate  to 
which  they   are  returned,   exemption   from  trial  for  any  criminal  act 
done  therein.     No  purpose  or  intention  is  manifested  to  afford  ihcra 
any  immunity  or  protection  from  trial  and  punishment  for  any  offences 
committed  in  the  State  from  which  they  flee.     On  the  contrary,  the 
provision   of  both  the  Constitution   and  the   statutes  extends   to  ail 
crimes  and  offences  punishable  by  the  laws  of  the  State  where  the  act  is 
done.    Kentucky  v.  Dennison,  24  How.  66,  101,  102  ;  Ex  i«irtc  Keggd, 
114  U.  S.  642. 

The  case  of  United  States  v.  Rauscher,  119  U.  S.  407,  has  no  appli- 
cation to  the  question  under  consideration,  because  it  proceeiicd 
upon  the  ground  of  a  right  given  impliedly  by  the  terms  of  a  treaty 
between  the  United  States  and  Great  Britain,  as  well  as  expressly  by 
the  acts  of  Congress  in  the  case  of  a  fugitive  surrendered  to  the  United 
States  by  a  foreign  nation.  That  treaty,  which  specified  the  offences 
that  were  extraditable,  and  the  statutes  of  the  United  Slates  passed  to 
carry  it  and  other  like  treaties  into  effect,  constituted  the  supreme  la»r 
of  the  land,  and  were  construed  to  exempt  the  extra<litcd  fugitive  from 
trial  for  any  other  offence  than  tiiat  mentioned  in  the  demand  for  Ins 
surrender.  There  is  nothing  in  the  Constitution  or  statutes  (»f  the 
United  States  in  reference  to  interstate  rendition  of  fugitives  from  jns- 
tice  which  can  be  regarded  as  establishing  any  compact  'x'^-';^"  »;° 
States  of  the  Union,  such  as  the  Ashbuiton  treaty  -;"''»--•  •'"^'S 
their  operation  to  particular  or  designated  offences.     On  the  contra.), 


956  LASCELLES    V     OEOKOIA.  [CHAP.  XXII. 

the  provisions  of  the  organic  and  statutory  law  embrace  crimes  and 
offences  of  every  character  and  description  punishable  b}'  the  laws  of 
the  State  where  the  forbidden  acts  are  committed.  It  is  questionable 
whether  the  States  could  constitutionally  enter  into  an}-  agreement  or 
stipulation  with  each  other  for  the  purpose  of  defining  or  limiting  the 
offences  for  which  fugitives  would  or  should  be  surrendered.  But  it  is 
settled  by  the  decisions  of  this  court  that,  except  in  the  case  of  a  fugi- 
tive surrendered  b}'  a  foreign  government,  there  is  nothing  in  the  Con- 
stitution, treaties  or  laws  of  the  United  States  which  exempts  an 
offender,  brought  before  the  courts  of  a  State  for  an  offence  against  its 
laws,  from  trial  and  punishment,  even  though  brought  from  another 
State  b}'  unlawful  violence,  or  by  abuse  of  legal  process.  Ker  v.  Illi- 
nois, ll"9  U.  S.  436,  444;  Mahon  v.  Justice,  127  U.  S.  700,  707,  708, 
712,  715  ;  Cook  v.  Hart,  146  U.  S.  183,  190,  192. 

In  the  case  of  Mahon  v.  Justice,  127  U.  S.  700,  a  fugitive  from  the 
justice  of  Kentucky  was  kidnapped  in  West  Virginia  and  forcibly  car- 
ried back  to  Kentuckv,  where  he  was  held  for  trial  on  a  criminal 
charge.  The  Governor  of  West  Virginia  demanded  his  restoration 
to  the  jurisdiction  of  that  State,  which,  being  refused,  his  release 
was  sought  b}'  habeas  corpus,  and  it  was  there  contended  that,  under 
the  Constitution  and  laws  of  the  United  States,  the  fugitive  had  a  right 
of  asylum  in  the  State  to  which  he  fled,  which  the  courts  of  the  United 
States  should  recognize  and  enforce,  except  when  removed  in  accord- 
ance with  regular  proceedings  authorized  by  law.  Instead  of  acceding 
to  this  proposition,  this  court  said :  "  But  the  plain  answer  to  this  con- 
tention is  that  the  laws  of  the  United  States  do  not  recognize  an^'  such 
right  of  asylum  as  is  here  claimed,  on  the  part  of  the  fugitive  from  jus- 
tice in  any  State  to  which  he  has  fled  ;  nor  have  they,  as  alread}'  stated, 
made  any  provision  for  the  return  of  parties,  w^ho,  bj-  violence  and 
without  lawful  authorit}',  have  been  abducted  from  a  State."  And  the 
court  further  said  :  "  As  to  the  removal  from  the  State  of  the  fugitive 
from  justice  in  a  way  other  than  that  which  is  provided  b}-  the  second 
section  of  the  fourth  article  of  the  Constitution,  which  declares  that  '  a 
person  charged  in  any  state  with  treason,  felony  or  other  crime,  wlio 
shall  flee  from  justice,  and  be  found  in  another  State,  shall,  on  demand 
of  the  executive  authority  of  the  State  from  which  he  fled,  be  delivered 
up  to  be  removed  to  the  State  having  jurisdiction  of  the  crime,'  and  the 
laws  passed  b}'  Congress  to  carr}'  the  same  into  effect,  —  it  is  not  per- 
ceived how  that  fact  can  affect  his  detention  upon  a  warrant  for  the 
commission  of  a  crime  within  the  State  to  which  he  is  carried.  The 
jurisdiction  of  the  court  in  which  the  indictment  is  found  is  not  im- 
paired by  the  manner  in  which  the  accused  is  brought  before  it.  There 
are  many  adjudications  to  this  purport  cited  b}'  counsel  on  the  argu- 
ment, to  some  of  which  we  will  refer"  (pp.  707,  708).  After  review- 
ing a  number  of  cases  on  this  question,  the  court  proceeded  :  "  Other 
cases  might  be  cited  from  the  same  courts  holding  similar  views.  There 
is,  indeed,  an  entire  concurrence  of  opinion  as  to  the  ground  upon 


CHAP.  XXII.]  LASCELLES   V.   GEORGIA.  957 

which  a  release  of  the  appellant  in  the  present  ca«e  is  asked,  namely, 
that  his  forcible  abduction  from  another  State,  and  convuMince  niUiiu 
the  jurisdiction  of  tlie  court  holding  liiui,  iu  uo  objection  to  ihe  deten- 
tion and  trial  for  the  offence  charged.  They  all  proceed  ujkju  ilie 
obvious  ground  that  the  offender  against  the  law  of  the  Stale  in  not 
relieved  from  liability  because  of  personal  injuries  receiveil  IVuni  private 
parties,  or  because  of  indignities  connuiLted  against  anoiiier  Siaie.  It 
would  indeed  be  a  strange  conclusion,  if  a  party  charged  with  a  crimitml 
offence  could  be  excused  from  answering  to  the  governujent  wljoi*e  Iuwm 
he  had  violated,  because  other  parties  had  done  violence  to  Uiui,  and 
also  committed  an  offence  against  the  laws  of  another  Stale  "  (p.  712). 
The  same  principle  was  applied  in  the  case  of  Ker  v.  Illinois,  liy  U.  S. 
436. 

If  a  fugitive  maj'  be  kidnapped  or  unlawfully  abducted  from  th«» 
State  or  country  of  refuge,  and  be,  thereafter,  tried  in  the  State  to  which 
he  is  forcibly  carried,  without  violating  any  right  or  inununily  secure<! 
to  him  by  the  Constitution  and  laws  of  the  United  Stales,  it  is  tlillicult 
to  understand  upon  what  sound  principle  can  be  rested  the  denial  of  a 
State's  authority  or  jurisdiction  to  try  him  for  another  or  ihlTerenl 
offence  than  that  for  which  he  was  surrendered.  If  the  fugitive  be 
regarded  as  not  lawfully  within  the  limits  of  the  State  in  respect  to  any 
other  crime  than  the  one  on  which  his  surrender  was  effected,  still  ihat 
fact  does  not  defeat  the  jurisdiction  of  its  courts  to  try  him  for  other 
offences,  any  more  than  if  he  had  been  brought  within  such  jurisdiction 
forcibly  and  without  any  legal  process  whatever. 

We  are  not  called  upon  in  the  present  case  to  consider  what,  if  any. 
authority  the  surrendering  State  has  over  the  subject  of  the  fugitive's 
rendition,  beyond  ascertaining  that  he  is  charged  with  crime  in  ihe  SUitc 
from  which  he  has  fled,  nor  whether  the  States  have  any  jurisdiction  to 
legislate  upon  the  subject,  and  we  express  no  opinion  on  these  ques- 
tions. To  apply  the  rule  of  international  or  foreign  extraditi«>n.  as 
announced  in  United  States  v.  Rauscher,  119  U.  S.  407.  to  interstate 
rendition  involves  the  confusion  of  two  essentially  different  things, 
which  rest  upon  entirely  different  principles.  In  the  former  the  extra- 
dition depends  upon  treaty  contract  or  stipulation,  which  rests  u|x>n 
good  faith,  and  in  respect  to  which  the  sovereign  upon  whom  the 
demand  is  made  can  exercise  discretion,  as  well  as  investigate  the 
charge  on  which  the  surrender  is  demanded,  there  being  no  rul.-  of 
comity  under  and  by  virtue  of  which  independent  nations  are  required 
or  expected  to  withhold  from  fugitives  within  their  jurisdiction  the 
right  of  asylum.  In  the  matter  of  interstate  rendition,  however,  thorc 
is  the  bindbig  force  and  obligation,  not  of  contract,  but  of  th.-  supreme 
law  of  the  land,  which  imposes  no  conditions  or  limiUitions  u|H.n  the 
jurisdiction  and  authority  of  the  State  to  which  the  fugitive  is  relnrneil. 
There  are  decisions  in  the  state  courts  and  in  some  of  the  lower 
Federal  courts  which  have  applied  the  rule  laid  down  in  rmted  Slates 
V.  Rauscher,  supra,  to  interstate  rendition  of  fugiUves  under  the  tou- 


958  LASCELLES   V.   GEORGIA.  [CilAP.  XXIL 

stitution  and  laws  of  the  United  States,  but  in  our  opinion  they  do  not 
rest  upon  sound  principle,  and  are  not  supported  by  the  weight  of  judi- 
cial authority. 

The  cases  holding  the  other  and  sounder  view,  that  a  fugitive  from 
justice  surrendered  by  one  State  upon  the  demand  of  another  is  not 
protected  from  prosecution  for  offences  other  than  that  for  which  he 
was  rendered  up,  but  may,  after  being  restored  to  the  demanding  State, 
be  lawfully  tried  and  punished  for  any  and  all  crimes  committed  within 
its  territorial  jurisdiction,  either  before  or  after  extradition,  are  the  fol- 
lowing: In  re  Noyes,  17  Albany  L.  J.  407;  Ham  v.  The  State, 
(Texas,)  4  Tex.  App.  645  ;  State  ex  rel.  Brown  v.  Stewart,  60  Wiscon- 
sin, 587 ;  Post  V.  Cross,  135  N.  Y.  536  ;  Commonwealth  v.  Wright, 
158  Massachusetts,  149  ;  and  In  re  Miles,  52  Vermont,  609. 

These  authorities  are  followed  by  the  Supreme  Court  of  Georgia  in 
the  clear  opinion  pronounced  by  Lumpkin,  J.,  in  the  present  case. 

The  highest  courts  of  the  two  States  immediately  or  more  directly 
interested  in  the  case  under  consideration  hold  the  same  rule  on  this 
subject.  The  plaintiff  in  error  does  not  bear  in  his  person  the  alleged 
sovereignty  of  the  State  of  New  York,  from  which  he  was  remanded, 
Dow's  case,  18  Pa,  37,  but  if  he  did,  that  State  properly  recognizes 
the  jurisdiction  of  the  State  of  Georgia  to  try  and  punish  him  for  any 
and  all  crimes  committed  within  its  territory.  But  aside  from  this, 
it  would  be  a  useless  and  idle  procedure  to  require  the  State  having 
custody  of  the  alleged  criminal  to  return  him  to  the  State  by  which  he 
■was  rendered  up  in  order  to  go  through  the  formality  of  again  demand- 
ing his  extradition  for  the  new  or  additional  ofFences  on  which  it  desired 
to  prosecute  him.  The  Constitution  and  laws  of  the  United  States 
impose  no  such  condition  or  requirement  upon  the  State.  Our  conclu- 
sion is  that,  upon  a  fugitive's  surrender  to  the  State  demanding  his 
return  in  pursuance  of  national  law,  he  may  be  tried  in  the  State  to 
which  he  is  returned  for  any  other  offence  than  that  specified  in  the 
requisition  for  his  rendition,  and  that  in  so  trying  him  against  his 
objection  no  right,  privilege  or  immunity  secured  to  him  by  the  Consti- 
tution and  laws  of  the  United  States  is  thereby  denied. 

It  follows,  therefore,  that  the  judgment  in  the  present  case  should  be 

Affirmed. 


APPENDIX. 


The  following  extracts  from  old  rolls  are  here  reprinted  to  illuHtmtp  rprtain  jxhdU 
of  the  aiicieut  criminal  procedure.  Such  passages  from  liructuu  and  Kriiujn  u  thn^w 
light  on  the  rolls  are  added. 

The  later  process  on  appeal  is  described  by  IJlackstoue  (Com.  iv.  312),  who  ailds. 
"If  the  appellee  be  acquitted,  tlie  ajjpellor  (by  virtue  of  the  statute  «f  WenUn  2,  M 
Ed.  I.  c.  12)  shall  suffer  one  year's  imprisouniejit,  and  pay  a  fine  to  the  kinj;,  In-gide* 
restitution  of  damages  to  the  party  for  the  impri.simment  and  infamy  which  he  has 
sustained ;  and  if  the  appellor  be  incapable  to  make  restitution,  his  al>etiun»  ithull  do 
it  for  hira,  and  also  be  liable  to  impri.sonment.  Tiiis  provision,  as  was  fore»e«u  liy  the 
author  of  Fleta,  proved  a  great  discouragement  to  appeals,  so  that  thuucefurward  lliey 
cea,sed  to  be  in  common  use."     Ibid.  316. 

The  last  appeal  in  England  (in  which  trial  by  battle  was  held  still  to  !>«  lt';jaU  *»aui 
in  1818:  Ashford  v.  Thornton,  1  B.  &  Aid.  40.^.  Appeal  and  Trial  by  Uattle  weru  at 
once  abolished  by  statute :  59  Geo.  III.  c.  46.  They  have  never  l>eeu  in  force  iu  ihi* 
country. 

Appeal  of  Homicide.  —  Battle. — Exception  of  Maim. 

2  Rotuli  Curiae  Regis  172  [1200].  Robert  Kcincl,  man  and  kinsman  of  WjHiim 
Brun,  Roger  Brun,  his  nephew  and  man,  Philip  [de  Livct],  Henry  de  Fridby,  his  rfia- 
tives,  say  that  some  strife  and  hatred  existed  between  William  Brun  and  \Varr<-n  <•( 
London,  Elias  son  of  Philip,  Richard  son  of  Gilmii-hael,  Thomas  Norrfin,  ami  Uol^rt 
of  Winchester,  since  dead;  and  said  William  Brnn  came  to  the  county  <>(  Dublin  .ind 
sought  the  King's  peace  before  the  justice  of  that  country,  Peter  Pipard  ,  thf  nf^ir*'- 
said  pledged  their  peace  to  said  William.  Afterward  it  happened  th.nt  m\i\  Wjllinm, 
because  of  a  writ  of  the  justice,  came  to  the  castle  of  Dublin,  and  would  have  roturntxl ; 
and  he  was  on  the  drawbridge  with  said  Robert,  Kon;pr,  Philip,  ami  Henry  H<*  wm 
seen  by  the  aforesaid  Warren,  Elias,  Richard,  Thomas,  Robert,  and  .Home  other  ni.in 
(whom  William's  party  had  never  .seen  before  or  after),  who  held  a  battlo  axe.  ^^  hon 
these  saw  him  they  opposed  him  and  his  friends,  and  the  m:»n  with  tho  nxp  r*wo  np 
and  by  their  command  struck  said  William  Brun  so  that  he  fell  into  the  <litrh  of  ih« 
castle",  and  died  the  third  day  after.  While  two  of  the  aforosai-l  des.»<i)dcd  into  the 
ditch  to  help  their  lord,  the  other  two  raised  hue  and  cry  and  followed  tln>  mnh-f.-v  U.rt 
until  said  Warren  of  London  received  him  who  killed  their  lord  and  let  him  »-*-ni* 
through  a  gate  which  he  guarded  and  had  a  key  of  [so  that  they  could  not  foll-.w 
him].  And  they  say  that  at  the  cry  t'nen  raised  came  the  .lustice  of  th««  ronntrT.  «nd 
Randolph  Morin,  a"  well-known  man.  and  many  others,  who  s.nw  wiid  William  tho* 
wounded.  And  that  the  man  with  the  battle-axe  thn.s  struck  hi.s  lor.1  by  o^mmaml 
of  Warren,  and  that  the  latter  afterwards  received  him  at  the  pate  whn-h  hr  had  m 
his  guard  [wickedly  and  against  the  pe.ace  of  the  lord  of  the  land  and  tho  jy^ar*  wh.rh 
they  had  pledged],' Robert  offers  to  prove  against  him  a.-,  the  conrt  ^hnll  ron«idrr.  a- 
something  he  has  seen  and  heard.    And  Roger  Brun  offers  to  prove  likewue  aR«.tiM 


960  APPENDIX. 

Elias,  Philip  against  Richard,  Henry  against  Thomas,  that  the  aforesaid  malefactor 
thus  killed  their  lord  by  command  of  those  [defendants],  as  something  tliey  had  seen 
and  heard. 

And  Warren  comes  and  defends  all  word  by  word  as  a  man  maimed  by  a  broken 
leg,  and  kuigiits  sent  to  view  him  bear  wituess  to  tiiis  [fact].  And  the  others  likewise 
defend  all  as  the  court  shall  adjudge;  and  they  offer  sixty  marks  to  have  an  inquest 
•whether  they  ever  pledged  their  peace  as  was  said. 

It  was  adjudged  that  Warren  should  defend  himself  by  the  ordeal  of  iron ;  he  has 
waged  his  law.  And  the  other  appellees  shall  defend  themselves  by  battle.  Elias 
wages  battle  ;  Richard  likewise. 

A  day  is  given  them  to  make  their  law  on  the  fifteenth  day  from  the  morrow  of 
St.  George  before  our  lord  the  King  wherever  he  may  be,  whether  in  England  or 
beyond  sea. 

[When  an  arrested  person  is  produced  before  the  justices,  .  .  and  charged  with 
the  crime  imputed  to  him,  if  he  forthwith  confesses  the  crime,  the  judgment  will  be 
plain  enough.  But  if  he  deny,  and  defend  the  crime  precisely,  and  if  any  one  appeal 
him  by  words  legally  making  an  appeal,  and  he  then  defends  himself  precisely  against 
everything  charged  against  him,  and  makes  no  exception  against  the  accuser,  he  shall 
have  an  election  whether  he  wishes  to  put  himself  upon  the  country  [to  decide] 
whether  he  is  guilty  of  the  crime  imputed  to  him  or  not,  or  of  defending  himself  by 
his  own  body.  —  Bract.   137 

A  person  necessarily  defends  himself  by  the  country  on  account  of  a  defect  in  the 
person  of  the  appellor,  as  on  account  of  maim.  —  Bract.  142  b. 

Then  let  the  defendant  give  security  to  defend  himself,  and  the  appellor  security  to 
prove  the  cause ;  next  let  a  day  be  given  them  to  provide  themselves  with  arms,  and 
let  the  defendant  in  the  meantime  remain  in  prison.  When  they  appear  armed  in 
Court,  let  the  plaintiff  repeat  his  appeal,  word  for  word,  as  he  did  before,  and  the 
defendant  defend  himself  as  before ;  and  afterwards  let  them  take  each  other  by  the 
hand,  and  let  the  defendant  swear  first  in  this  manner,  and  the  appellor  afterwards,  as 
shall  be  presently  more  fully  set  forth.  "  Hear  this,  you  man  whom  I  hold  by  the  hand, 
who  call  3^ourself  John  by  your  name  of  baptism,  that  I,  Peter,  did  not  in  such  a  year, 
nor  on  such  a  day,  nor  in  such  a  place,  compass  or  propose  the  death  aforesaid,  nor  did 
assent  to  such  felony  as  you  have  charged  me  with,  so  help  me  God,  and  the  Saints." 
After.wards  the  appellor  shall  swear  thus  ;  "  Hear  this,  you  man  whom  I  hold  by  the 
hand,  who  call  yourself  Peter  by  your  name  of  baptism,  that  you  are  perjured,  inas- 
much as  on  such  a  day,  in  such  a  year,  and  in  such  a  place,  you  did  propose  such  a 
treason  or  such  a  death  as  I  have  said  against  you  in  the  appeal,  so  help  me  God  and 
the  Saints."  Then  let  them  both  be  brought  to  a  place  appointed  for  that  purpose, 
where  they  must  swear  thus  •  "  Hear  this,  ye  Justices,  that  I  John  (or  I  Peter)  have 
neither  eaten  nor  drunk  anything,  or  done  or  caused  to  be  done  for  me  any  other 
thing,  whereby  the  law  of  God  may  be  abased,  and  the  law  of  the  devil  advanced  or 
exalted  "  And  thus  let  it  be  <lone  in  all  battles  in  appeals  of  felony.  And  let  procla- 
mation be  immediately  made  that  no  one,  except  the  combatants,  whatever  thing  he 
see  or  hear,  be  so  bold  as  to  stir,  or  cry  aloud,  whereby  the  battle  may  be  disturbed; 
and  whosoever  disobeys  the  proclamation  shall  he  imprisoned  a  year  and  a  day. 

Next  let  them  go  to  combat,  armed  without  iron  and  without  the  slightest  armor, 
their  heads  uncovered,  their  hands  and  feet  bare,  with  two  staves  tipped  with  horu,  of 
equal  length,  and  each  of  them  a  target  of  four  corners,  without  any  otlier  arms, 
whereby  either  of  them  may  annoy  the  other ;  and  if  either  of  them  have  any  other 
arms  concealed  about  him,  and  therewith  annoy  or  offer  to  annoy  his  adversary,  let 
it  be  done  as  shall  be  mentioned  in  treating  of  battle  in  a  plea  of  land.  If  the  defend- 
ant can  defend  himself  until  the  stars  can  he  seen  in  the  firmament,  and  demands 
judgment  whether  he  ought  to  combat  any  longer,  our  will  is.  that  judgment  pass  for 
the  defendant,  and  so  in  all  battles  between  champions,-  and  in  the  case  of  felony 
the  appellor  shall  be  committed  to  prison.  And  if  the  defendant  will  confess  the 
felony  before  he  is  otherwise  attainted,  and  appeal  others  of  consenting  to  the  same, 
we  allow  him  to  be  admitted  thereto.    And  if  the  defendant  be  vanquished,  let  the 


APPENDIX.  961 

judgment  be  this,  that  he  be  drawn  and  hanged,  or  put  to  inch  other  jminto]  dr^ib 
as  we  shall  direct,  and  that  all  his  movable  g.M.d.M  Im  .,ur.,  and  his  hi-m,  iliM.ai.r.i*<j 
fi.ud  his  children  shall  be  iueapablo  of  ev.  r  holding  land  in  our  rt.-alm.  And  irt  i.tK 
any,  unless  they  would  be  suspected  lln'nis.-lvM  of  ilio  f.-louy,  j.rffluuif  to  u.unr-ie 
for  him ;  and  let  the  accuser,  who  without  dchiy  hhall  pronetuie  »uci»  (clmy  wiih  ninxl 
effect,  receive  from  us  a  notable  reward.  —  Nicholn'  I5riii<»n,  i.  lo5  tl  ki>.  ' 

See  Plowd.  306  b.  "Bromley  said  that  when  a  fth^n  wa;*  found  guiliy  iu  an  «|itK>*J, 
of  murder,  the  ancient  usage  was  that  all  thotte  of  thu  blood  of  him  who  was  mur- 
dered should  draw  the  felon  by  a  long  cord  to  the  placo  of  execuiiou  "J 

Appeal  of  Homicide.  —  Seizin  of  Instuument  of  Di:aiii. 

Maitland's  Pleas  of  the  Crown  for  Gloucester,  pi.  394.  William,  sou  of  Maiild&. 
•was  arrested  and  imprisoned  at  Gloucester  for  the  death  of  William  ilhuid,  whom  be 
killed  ;  and  Nicholas  de  Ecclesia,  John,  son  of  Melicent,  Waller  de  liuvona,  W^icr 
Faber,  and  Richard  de  Herdeshille,  and  many  others  beside,  who  were  pn-wnt  ai  Uw 
killing  attended  and  testified  that  they  saw  where  he  killed  the  deieiu«ed,  and  that  lUey 
took  him  at  once  upon  the  act  while  he  still  hel<l  iu  his  hand  the  suiff  with  whith  lie 
did  the  killing.  And  moreover  the  four  next  vills  testify  the  same  tiling,  except  aa  Uj 
personal  sight  of  it;  and  Dionisia,  wife  of  said  William  Hlund,  appwiU  liim  of  \\w 
aforesaid  death  as  of  what  she  had  seen,  and  moreover  twelve  jurors  »ay  thai  he  w 
guilty  of  it.  And  he  defends  the  whole  against  them  all.  But  since  he  wa«  arrejtUyl 
just  after  the  act,  while  he  still  held  in  his  hand  the  staff  with  which  he  did  the  killiujc. 
and  all  agree  that  he  is  guilty  of  it,  it  is  adjudged  that  he  may  not  defend  it,  and  »o 
let  him  be  hanged. 

[The  appellee  may  defend  himself  by  his  body,  when  he  has  l)een  appealed ;  unlcm 
some  violent  presumption  makes  against  him,  which  does  not  admit  of  any  proof  u> 
the  contrary,  by  which  he  can  disprove  or  defend  the  death  or  felony ;  aa  may  l>e  the 
case  when  a  person  has  been  captured  on  a  dead  body  with  ii  bloody  knife :  he  raunoC 
deny  the  death.  And  this  is  an  ancient  constitution,  and  in  such  case  there  is  no  uctd 
of  other  proof.  —  Bract,  de  Leg.  137.] 

Indictment  for  Homicide.  —  Finders.  —  Amercemevt  of  Tirmyr,. 

Maitland's  Pleas  of  the  Crown  for  Gloucester,  pi.  444.  Reginald  Little  wa«  found 
killed  in  the  King's  way  in  the  vill  of  Frompton,  and  the  brothers  William  and  Rol>ort 
Blund  and  Idonea  Trages  fled  for  the  death.  The  finders  of  the  Ixxiy,  to  wit,  Wioc, 
son  of  John  Magnus,  and  Annota,  daughter  of  Walter,  and  Mirabilsa,  daughter  of 
Hugh,  have  not  come;  they  were  attached  by  Godwin,  tithing-man  of  F"rompton.  and 
all  his  tithing;  so  let  them  be  amerced.  No  one  is  suspected.  Therefore  lot  William 
and  Richard  be  proclaimed  and  outlawed  ;  they  were  in  frank-pledge  of  the  vill  o( 
Frompton,  so  let  it  be  amerced.  They  had  no  chatttds.  Englishry  is  not  presented. 
so  it  is  murder.  And  Engelard,  then  sheriff,  took  from  one  Rol)ert  Trages,  father  of 
Idonea,  20  marks. 

[If  a  dead  man  be  found  slain  in  the  fields  or  woods,  the  finders  shall  he  firt 
attached,  whether  they  be  male  or  female,  of  whatever  age  they  may  be,  and  whether 
the  dead  man  was  slain  there  or  elsewhere.  —  Bract.  121. 

Concerning  the  person  who  has  taken  to  flight  it  must  be  diligently  inquinxl 
whether  he  was  in  frankpledge  and  in  a  tithing,  and  then  the  tithing  will  1*  amcr- 
ciable  before  onr  justices,  because  they  have  not  produced  the  malefartor  for  tnul ; 
although  he  has  been  captured  again  by  others  beforehand  and  delivered  into  pritoo, 
since  he  has  not  been  captured  and  produced  by  the  tithing.  —  lb.  124  i.J 

Appeal  of  Larceny.  — Vouching  to  Waru.^xt. 
1  Select  Pleas  of  the  Crown  (Selden  Society),  123  [1220].     I'hilip  Horrey>  «^ 
Robert,  Humfrey's  son,  Henry,  Andrew's  son,  William,  Ruhard  s  »"".  ^''";J^  TJ 
of  the  court  of  the  Earl  of  Britanny  of  Cheshunt,  summoned  to  make  recottl  of 

61 


962  -  APPENDIX. 

battle  waged  in  their  court  between  Hamo  Moor,  the  appellor,  and  Elias  Piggun,  the 
appellee,  touching  a  stolen  horse,  whereof  Harao  makes  appeal,  come  and  record  that 
Hamo  Moor  complained  in  the  Earl's  court  against  Philip  King,  for  that  he  stole  a 
mare  of  his  in  his  common  pasture  wickedly  and  in  felony  and  in  larceny,  in  the  peace 
of  God  and  in  the  peace  of  his  lord  the  Earl,  and  this  he  offered  to  prove  by  his  body 
one  hour  of  the  day,  as  the  court  should  consider.  And  Philip  came  and  defended 
wickedness,  felony,  and  larceny,  and  said  that  he  had  a  warrantor  and  would  produce 
him  in  due  season,  namely,  one  Edward ;  and  a  day  was  given  him  to  produce 
[Edward].  Then  Philip,  after  casting  three  essoins,  came  and  produced  Edward  his 
warrantor,  and  Edward  took  up  the  warranty  of  the  mare.  And  when  Hamo  saw 
[Edward]  seised  of  the  mare,  he  counted  against  him  by  the  same  words  that  he  had 
used  before,  adding  that  he  knew  no  other  thief  than  Edward,  whom  he  saw  there  in 
seisin  and  who  had  taken  on  himself  to  warrant  the  mare ;  and  he  offered  to  prove 
against  him  by  his  body,  &c.  And  Edward  defended  all  of  it  word  by  word,  and 
vouched  to  warranty  Elias  I'iggun,  whom  he  produced.  And  [Elias]  took  hold  of  tlie 
mare  and  took  up  the  warranty  and  said  that  he  sold  the  mare  as  his  own  proper 
chattel  to  Edward.  And  when  Hamo  saw  Elias  seised  of  the  mare  he  counted  against 
him,  and  said  he  knew  no  other  thief  than  Elias,  whom  he  saw  there  in  seisin  and  who 
had  takeu  up  the  warranty  against  him ;  and  he  said  that  wickedly  and  in  larceny,  in 
the  peace  of  God  and  of  tiie  Earl,  [Elias]  stole  the  mare,  using  the  same  words  as 
before ;  and  this  he  offered  to  prove  by  his  body,  &c.,  as  the  court,  &c.  And  Elias 
defended  all  of  it  word  by  word  and  offered  to  behave  against  Hamo  as  regards  tlie 
mare  as  though  it  were  his  [Elias's]  own  proper  chattel,  as  the  court  should  consider. 
It  was  thereupon  considered  that  Elias  should  give  gage  to  defend  himself  and  Hamo 
gage  to  deraign. 

And  Hamo  said  that  [the  four  recorders]  do  in  part  record  well,  but  in  part  too 
little,  for  when  Elias  was  vouched  to  warrant  and  warranted  the  mare  to  Edward, 
[Hamo]  challenged  him  as  being  a  hired  champion,  whom  Edward  had  hired  for 
money  to  become  his  warrantor,  and  of  this  [Hamo]  produced  sufficient  suit ;  and  that 
this  [account  of  the  proceedings]  is  true,  he  now  proves  by  one  who  saw  and  by 
another  who  heard ;  and  if  this  be  not  enough  he  offers  the  King  one  mark  for  an 
inquest  thereof ;  for  he  says  that  he  could  not  get  this  [challenge]  allowed  him,  though 
he  craved  that  it  might  be  allowed. 

And  the  said  four  [recorders]  on  behalf  of  the  [Earl's]  court  say  that  the  record  is 
as  they  record,  and  not  as  Hamo  says ;  and  that  it  is  as  they  record  they  offer  to 
deraign  by  the'body  of  a  free  man  of  "the  court,  or  as  the  [King's]  court  shall  consider, 
or  to  defend  that  the  record  is  not  as  Hamo  says,  as  the  court  shall  consider. 

And  Elias  being  asked  where  he  got  that  mare,  says  that  before  the  war  she  was 
given  him  at  Cardiff,  in  Wales,  together  with  some  pigs,  by  a  certain  man,  in  consid- 
eration of  lessons  in  sword-play,  and  that  he  possessed  her  for  six  weeks,  and  brought 
her  from  Wales  into  these  parts,  and  sold  her  to  Edward  for  three  shillings  and  a 
penny,  outside  Waltham  at  the  cross.  But  as  to  the  sale  he  produces  no  suit,  but 
confesses  that  he  and  Edward  were  alone  together.  And  Edward  says  the  same. 
Edward  also  says,  that  he  has  had  the  mare  these  five  years. 

And  Hamo  says  that  tlie  mare  was  foaled  to  him,  and  that  he  still  has  her  mother, 
and  that  she  was  stolen  at  Easter  in  the  third  year  of  the  reign,  and  of  this  he  has 
sufficient  suit. 

And  Elias,  being  asked  how  he  knew  the  mare  after  so  long  an  interval,  says  that 
he  knew  her  bv  a  mark,  namely,  a  slit  in  her  ear. 

And  eight  of  the  men  of  the  vill  of  Cheshunt,  and  as  many  of  the  vill  of  Waltham, 
and  of  Wormley  and  of  Enfield,  are  summoned  to  certify  the  justices 

The  following  are  pledges  to  produce  Elias  Piggun,  on  Monday  before  [Mid]  Lent : 
Thomas  of  Multon,  Peter  of  Nereford,  and  the  four  knights  who  brought  the  record. 

A  day  is  given  to  hear  their  judgment,  on  Monday,  before  Mid-Lent,  and  then  let 
them  come  without  their  armor.  At  that  day  they  came,  and  Elias  is  committed  to 
the  Fleet  gaol  bv  the  King's  council. 

Hamo's  pledges  to  prosecute :  William  the  Tanner  of  London  and  John  of  Hale. 


APPENDIX.  9Q<f 

Eight  men  of  Waltham  he\ufr  ,wurn  pay  upon  th.-ir  -ath  that,  w  t(..r  '.•,.,, 
(for  all  the  countrysnie  says  so),  the  n.un,  was  f..al,.,l  to  llan.o.  an-l  thai  „  «x.  taU,. 
in  the  common  of  Cheshiu.t,  and  that  Han.o  foun.l  her  in  th«  plongh  ..f  l',.,l„.  K...  • 
and    that    Edward    had   Riveu    her  Uy  way  of    n.arr.H.e    ,.fi' w.th    h..   a...„...r    ,. 
Ih.l.p;  and  tliat  after  this  action  had  h.-.n  1m-^.«,.  in  the  o.un  of  (  hr.' 
handed  over  the  mare  to  Elias  I'ig-un,  the  wouhlU  warrantor  in  .,r.l.-r  t 
to  swear  safely  ;  and  they  say  positively  that  in  no  uther  wav  ,l,d  th«  mar.  . 
to  Ehas,  nor  had  he  hrou.jjht  her  into  tho.se  parts.     Th.v  a-'ld  that,  a*  th^. 

mare  went  in  Philip's  plough  for  two  years,  an.l  th.-v  rather  think  thai  1. ^j 

taken  her  from  the  common  hy  mistake  and  in  iguoriiuce,  and  not  in  maiiner  »fof*.a..l 
[i.  e.,  not  in  felony]. 

The  men  of  Cheshunt  being  sworn  say  that  thev  know  not  whether  iho  marr.  wn 
foaled  to  Hamo,  but  they  rather  think  that  she  Wiw  not;  but  thf-y  know  wril  that 
Edward  gave  her  to  I'hilip  as  a  marriage  gift  in  manner  .iforesaid  ;  Imi  th^r  do  i,.h 
believe  that  P^lias  had  ever  sold  her  to  Edward  ;  but  they  know  well  tliai  in  thr  i.r.^ 
euce  of  the  whole  parish  of  Cheshunt  Klias  said  that  he  [to<ik  up  the  warnu, 
God's  sake,  and  asked  all  men  to  pmy  for  him  so  truly  sis  true  it  wan  thai  br  .1; 
for  God's  sake  and  not  for  lucre;  and  .so  they  believe  rather  that  lie  did  it  (..r  (■.►!  * 
sake  than  for  any  other  cause.  As  to  tiie  marriage  portion  of  Kdward»  daujjhu-r 
tliey  have  heard  nothing. 

The  eight  men  of  Wormley  being  sworn  say  that  they  know  not  whether  tii« 
mare  was  foaled  to  Hamo,  but  they  know  well  that  Kdward  gave  her  as  a  marria;.'«s 
gift  with  his  daughter  to  Philip ;  but  they  believe  that  Kdward  Ixjught  her.  ther  know 
not  from  whom ;  but  they  do  not  believe  that  Klias  had  ever  sold  her  u>  him. 

The  eight  men  of  Enfield  say  upon  their  oath  that  they  well  l>elieve  that  the  ni*r<s 
was  Hamo's,  and  foaled  to  him,  for  all  men  say  so,  and  that  Kdward  gave  hi-r  •*»  a 
marriage  gift  as  aforesaid  ;  and  they  know  well  that  Klias  never  sold  her  to  Ivdward, 
but  [Elias]  has  [taken  up  the  warranty]  for  money,  to  wit.  for  ten  marks,  when-of  aa 
they  believe,  he  has  had  five  marks  and  five  are  still  due  t<:)  him.  And  some  of  ihein 
Bay  that  they  think  that  [Klias]  has  done  this  to  get  Edward's  daughter  Uj  wife,  ma 
well  as  the  money. 

Cognizance  of  the  case  between  Hamo  and  Edward  is  restored  to  the  court  of  the 
Earl  of  Britanny  by  the  king's  council,  and  they  have  leave  to  compr  imi"*e,  and  let 
Elias  have  his  judgment  in  the  king's  court.  It  is  considerol  that  he  do  \<v^  hi*  foot, 
and  be  it  known  that  by  the  action  of  the  king's  council  he  is  dealt  with  merrifullv, 
for  by  law  he  had  deserved  a  worse  punishment. 

[If  the  appellee  shall  say  that  the  thing  is  his  own,  and  has  been  sold  to  him  or  has 
been  given  to  him  by  a  certain  person,  then  it  will  he  necessarv  to  call  him  a«  a  war 
rantor.  But  if  a  warrantor  be  present,  or  if  he  can  produce  him  on  a  cort.ain  dav.  l<t 
him  produce  him,  that  proceedings  may  be  taken  concerninjj  the  warrantv  ;  but  if  ho 
cannot  produce  him,  then  proceeilings  must  take  pl.ace  in  another  way.  Rut  wh^n  a 
warrantor  is  present,  let  him  forthwith  warrant  it,  or  let  him  defend  him^flf  that  h« 
ought  not,  and  refuse  to  warrant  it  to  him.  And  in  this  cxse,  if  he  ha.<  refnv^!.  it  i* 
incumbent  on  the  appellee,  who  is  in  seisin,  to  deraign  this  against  him  by  hi*  body, 
and  so  they  may  arrive  at  a  battle  between  tliem.  But  if  he  sh.all  warrant  it.  then 
forthwith,  when  the  thing  has  been  handed  over  to  the  warrantor,  he  whn  railed  tK« 
warrantor  shall  be  set  free,  and  he  who  claims  the  thing  must  then  plea/l  aijninrt  the 
warrantor  by  words  of  appeal,  a.s  he  first  pleaded  against  the  first  seis/y :  and  •<> 
the  warrantor  may  call  warrantor  after  w.arrantor.  just  .as  in  the  ca.«e  of  the  flr«t  oni-. 
by  the  aid  of  the  court,  and  by  a  writ.  But  if  when  one  has  called  a  warrantor  he 
cannot  produce  him  without  the  aid  of  the  tonrt,  let  a  writ  i.snie.  —  Bract,  151. 

Sometimes  a  person  undertakes  the  defence  and  the  warranty  malifioujily  and 
fraudulently  and  for  payment  as  a  champion  and  a  hirelin;:.  which  ind«ysrl  if  It  ).« 
detected  before  the  judges  let  matters  not  proceed  to  b.attle.  but  let  the  truth  l« 
inquired  into  by  the  country,  if  he  has  received  payment  or  not.  And  if  it  he  pm»M 
in  the  affirmative,  let  him  lose  his  foot  and  his  hand,  as  wx«  adiudLr''d  before  Martin 
de  Pateshull,  in  the  term  of  St.  Hilary,  in  the  fourth  year  of  tho  r^ic7«  of  Kins  Hetirr, 
in  the  county  of  Essex,  concerning  Eiiaa  I'iguu,  a  hired  champion.  —  Ibid,  151  6.| 


964  APPENDIX. 


Appeal  of  Larceny. — Disclaimer. — Non-selsin. 

3  Bracton's  Note  Book  432,  pi.  1539,  [1221.]  It  was  commanded  to  the  sheriff  that 
he  should  bring  before  the  Justices  the  battle  which  was  waged  in  his  county  between 
Walter  Scolde  and  Adam  Blunt  about  two  hundred  pieces  of  tin  which  said  Adam 
stole  from  him,  as  he  said  :  and  that  he  have  the  record  of  that  battle  by  four  lawful 
knights  of  the  shire,  etc.,  who  with  the  record,  etc.  On  such  a  day  etc.  came  Robert, 
son  of  Richard  and  such  etc,  four  knights  of  the  shire,  with  the  record,  and  they 
record  "  that  said  Walter  showed  to  the  bailiffs  of  the  Prior  of  Bodmin  that  his  tin 
had  disappeared  without  his  consent,^  and  prayed  a  search,  and  had  it,  iu  the  town  of 
Bodmin.  And  first  they  searched  all  the  houses  of  Adam  Blunt  and  found  nothing. 
Afterward  they  came  to  another  parcel  of  laud  of  said  Adam  in  the  same  vill,  and 
found  in  a  garden  under  newly  planted  vegetables  two  hundred  and  seven  little  bits  of 
tin  iu  the  earth,  and  Walter  said  that  the  tin  was  his  and  that  of  his  lord  William  of 
Crewbarwe,  and  he  appealed  of  it  the  said  Adam,  for  that  he  was  the  thief  or  could 
name  the  thief,  and  tiiis  he  was  prepared  to  prove  against  him  by  his  body  because  lie 
saw  said  Adam  carrying  off  the  tin,  and  saw  him  digging  and  burying  it  in  the  earth 
in  the  said  garden  ;  and  he  offered  to  put  himself  upon  his  country'.  And  Adam  came 
and  defended  the  felony,  etc.,  and  prayed  a  view  of  the  tin,  and  had  it,  and  disclaimed 
the  tin  because  he  had  no  part  nor  art  in  it,  and  well  defended,  etc.  And  when  he 
was  asked  if  he  would  put  himself  on  his  coiintry  he  answered,  no.  And  because  said 
Adam  was  unwilling  to  put  himself  on  his  country,  and  the  other  spoke  of  something 
he  had  seen  and  heard,  it  was  adjudged  that  there  should  be  battle  between  them,  and 
the  record  was  thus  made  and  the  battle  waged." 

And  because  they  [i.  e.  the  knights]  admit  that  Adam  was  not  found  seised  of  the 
tin,  but  disclaimed  it,  and  one  piece  of  tin  is  like  another,  and  besides,  he  says  that  he 
saw  him  digging  the  tin  in  the  earth,  yet  they  say  that  they  searched  the  houses  at  a 
time  when  he  knew  that  it  wa.s  iu  the  earth,  it  is  adjudged  that  no  battle  lies 
between  them,  and  that  it  be  discharged.  And  the  county  is  amerced  for  a  false 
judgment,  and  Walter  is  likewise  amerced  for  a  false  hue  and  cry ;  and  let  him  have 
the  tin  on  .security  in  case  any  one  may  wish  to  claim  it  of  him,  etc. 

[If  one  be  not  found  seised  of  any  theft,  no  one  has  the  power  to  make  inquisition, 
or  to  proceed  against  him  to  inquisition,  except  our  Lord  the  King  in  his  court.  — 
Bract.  150  b.] 

Infangthief. 

Y.  B.  30  &  31  Ed.  I.  500  [1302].  It  was  presented  by  a  tithing  that  in  the  town  of 
Boddon  a  thief  was  taken,  and  brought  to  answer  and  hung ;  wherefore  the  Justices 
commanded  that  the  suitors  of  that  court  should  come  and  make  record  thereof.  They 
came  and  said  that  on  a  certain  day  etc.  one  Matthew  came  to  the  market  at  B.  and 
found  in  the  hands  of  one  Robert  his  horse,  which  had  been  the  night  before  stolen 
from  his  house  in  the  town  of  T.,  and  that  he  raised  the  cry  on  the  said  Robert,  and  so 
both  man  and  horse  were  taken :  that  the  Prior  of  Boddeu,  to  whom  the  franchise 
belonged,  hastily  summoned  and  held  his  court,  whereto  came  the  said  Matthew  and 
appealed  the  said  Robert  by  words  of  felony,  saying  that  he  had  feloniously  taken  the 
horse  against  the  peace,  etc. ;  and  that  Robert  came  and  admitted  the  felony,  where- 
upon the  .steward  who  held  the  Prior's  court  gave  judgment  that  he  should  be  hung. 

Spigornel,  J.     Call  the  Prior. 

The  Prior  came. 

Spigornel.  The  snitors  have  recorded  so  and  so ;  therein  seems  to  be  a  great 
error :  do  yon  claim  infangthef  and  utfangthef  ? 

Hunt.     Sir,  he  claims  to  have  infangthef. 

Spigornel.    Was  the  felony  committed  within  the  limits  of  your  franchise  ? 

Hunt.    No,  Sir. 

Spigornel.    Where  then  ? 

Hunt.     Sir,  we  do  not  know. 

1  Euit  ei  adiratum. 


APPENDIX.  965 

Spigornel.  Now,  Sir  Prior,  do  you  mean  to  hold  a  plea  in  vonr  ronrt  of  a  fdonr 
committed  out  of  the  limits  of  your  franchise,  when  you  claim  only  iufauK'tbi-f ' 

Hunt.  We  say  that  infangthef  extends  to  tl.e  ciiae  of  a  thief  l^iu^  ulteu  with  th» 
maiuor  at  the  suit  of  anyoue,  aud  that  if  he  will  submit  u>  iho  court  we  may  huM  ih« 
plea,  and  may  proceed  to  judgment  if  he  be  condemned. 

Spigornel.  I  have  told  you  that  they  have  recorded  that  ho  a.lmitUMl  hinumif  to 
be  a  thief,  and  that  they  went  to  judgment ;  can  you  do  that  without  presouinieui  by 
the  Coroner  1 

Hunt.  No ;  but  if  he  submit  to  the  court,  when  he  is  found  with  the  maiuor,  wo 
may  go  to  judgment. 

Spigorxel.  You  have  well  heard  how  it  is  recorded  that  you  went  to  judgment  «u 
him  who  acknowledged  himself  a  felon  without  presentment  by  the  (,'oroiier  who  .iin 
bear  record,  whereas  your  court  is  not  a  court  of  record;  and  this  you  cannot  deny. 
Attend  judgment  on  Monday. 

[There  are  certain  barons  and  others  who  have  a  franchise,  for  insUnce,  tuck  and 
sack-,  toll  and  team,  infnngthief,  outfanr/thief  They  may  judge  in  their  c<jurt  if  any  on« 
has  been  found  within  their  franchise  seised  of  any  manifest  larceny,  haudhaviw)  aud 
backbearimj,  and  has  been  followed  by  the  sackuber,  because  unless  he  wan  wjumhi, 
though  some  one  was  pursuing  him  as  a  thief,  it  shall  not  pertain  to  the  court,  nor  tiie 
hundred,  nor  the  wapentake  to  take  cognizance  of  such  thefts.  ...  A  larcener  caught 
upon  any  person's  laud  by  his  own  men  seised  of  the  larceny  is  called  tnjangthirf. 
But  a  thief  from  without,  coming  from  elsewhere  from  another's  land,  and  wlio  h.os 
been  caught  on  the  land  of  the  one  having  such  franchise  is  called  outJanyUufj.  — 
Bract.  154  b.] 

Approver.  —  iiATTLE. 

3  Bracton's  Note  Book  395,  pi.  1447  [1220|.  John  the  son  of  Nicholas  coufe,-«ing 
himself  a  thief  appeals  Alexander  of  Hecche  for  that  he  together  with  himself  stohi 
eight  horses  at  Blandford,  aud  Alexander  had  twenty  shillings  for  his  part :  and  ihu 
he  offers  to  prove  by  his  body  as  the  court  etc.  Aud  Alexander  comes  and  defend.n 
the  conspiracy  with  him  and  the  theft  of  tlie  horses  and  the  whole  charge,  word  for 
word,  by  his  body,  as  etc.  It  is  adjudged  that  there  be  battle  between  them,  and  h»t 
Alexander  give  pledge  to  defend  himself  aud  John  to  prove  his  charge.  Their  plpd:;>i 
is  the  gaol.  Let  them  come  armed  on  such  a  day :  and  Edith  his  wife,  arretted  with 
him,  is  discharged,  because  she  was  not  seised  of  any  theft,  and  Alice,  P^dith's  si-stt-r, 
likewise.     Alexander  was  coucjuered  and  hanged,  etc. 

Ibid.  563,  pi.  1724  [1226].  Henry  the  Irishman  arrested  with  John  Plantefolia,  an 
approver  who  appealed  him,  is  not  in  a  tithing,  and  has  no  lord  who  avows  him,  and  ia 
no  other  way  offers  to  purge  himself,  and  so  let  him  be  hanged,  etc. 

[An  approver,  although  he  has  confessed  the  crime,  nevertliele.ss  is  not  on  that 
account  judged.  The  king  may  if  he  so  wills,  grant  him  life  and  limb.s,  on  condition 
that  he  should  deliver  his  country  from  malefactors,  by  his  body  or  by  the  jury  or  by 
flio-ht,  according  as  it  has  been  agreed  upon  concerning  the  number  or  the  maniifr. 
He  may  appeal  whom  he  chooses  of  conspiracy  and  larceny  or  any  other  felony  ;  pro- 
vided, however,  if  he  be  some  one  faithful  and  in  frank  pledge,  and  has  a  lord  who 
will  avow  him,  and  is  willing  to  put  himself  upon  his  country,  and  is  ar(iuitt«>d  by  the 
country  as  faithful,  the  faithless  approver  shall  he  condemned  as  a  liar  and  cnvict. 
But  if  the  appellee  be  not  in  a  tithing,  and  has  no  lord  who  will  avow  hmi,  and  h.x-. 
rafused  his  country,  then  perhaps  when  all  his  goods  fail,  and  he  is  thereby  the  j^-r 
of  the  appellor,  a  battle  may  take  place  between  them,  for  a  confessed  felon  -r 
thief  has  no  voice  against  a  faithful  man,  who  ic  willing  an.l  able  to  put  h,ni.s.df  on 
the  country  concerning  his  fidelity.  ...  And  then  if  [the  appellee  def.nd.,  h.m^.lf) 
by  his  own  body  without  any  allowance  or  exception,  let  battle  be  waged  »>etw.o„ 
them,  and  let  the  appellee  give  bail  to  defend  himself,  and  the  ^^'V^ojor  fr^^.^^^Ai. 
deraign.  And  if  the  appellee  has  no  sureties,  let  the  gao  be  the  ..uret^  o  Knh.  and  . 
day  be  appointed,  upoa  which  they  shall  both  come  armed.  -  Bract.  152,  15J.J 


966  APPENDIX. 


Approval.  —  Outlaw. 

2  Bracton's  Note  Book,  115,  pi.  135  [1222].  —  William  Page,  confessing  himself  a 
thief,  appeals  William  Godmau  for  complicity  in  theft,  because  they  together  stole  a 
casket  belonging  to  William  de  Cautele  with  his  money  and  jewels,  so  that  he  had 
for  his  share  all  the  gold  and  jewels,  while  his  three  fellows  gave  him  for  his  own 
share  six  marks ;  and  this  he  offers  to  prove  by  his  body. 

And  William  Godman  comes  and  defends  all  by  his  body.  It  is  testified  by  the 
county  that  William  Godmau  was  outlawed  in  the  cpunty  by  judgment  of  the  justices 
itinerant ;  therefore  let  him  be  hanged,  and  let  William  Page  be  committed  to  prison 
again. 

[As  to  the  punishment  of  outlaws  in  their  lifetime  for  their  felonies,  their  judgment 
shall  be  this,  that,  since  they  will  not  be  amenable  to  the  law,  they  be  forejudged 
from  all  law,  and  put  out  of  our  peace,  and  be  answerable  to  all,  and  none  to  them, 
and  be  judged  felons ;  .  .  .  .  neither  in  appeals  shall  they  be  heard  against  any  man  ; 
and  if  they  are  taken  and  found  to  be  outlawed  by  record  of  the  roll  of  the  coroner, 
they  shall  be  hanged,  and  their  chattels  shall  be  ours,  and  their  heirs  disinherited  of 
every  kind  of  inheritance.  —  Nichols'  Britton  i.  51.] 

Abjuration  of  tue  Realm. 

3  Bracton's  Note  Book,  157,  pi.  1137  [1235].  —  Matilda  who  was  wife  of  Walter  of 
Leyburn,  who  appealed  Robert  Sorel  of  the  death  of  her  said  husband  Walter,  came 
and  retracted ;  and  so  she  and  her  pledges  are  amerced,  and  let  her  be  imprisoned. 
And  because  it  is  not  yet  known  whether  said  Robert  killed  him  by  mischance  or 
otherwise,  and  because  he  placed  him.self  in  church,  let  him  choose  one  of  the  two : 
whether  he  will  place  himself  iu  church  and  there  abjure  the  realm,  or  abjure  it  here 
at  once.  He  chooses  to  abjure  it  here  at  once,  etc.  He  has  abjured  the  realm,  and 
chooses  the  port  of  Dover.  And  time  for  crossing  sea  is  given  him,  40  days  from 
such  a  day ;  meanwhile,  or  then  at  latest,  let  him  cross  unless  he  be  hindered  for  lack 
of  ship  or  of  winds.  And  Simon  de  Montfort  undertakes  that  meanwhile  no  ill  or 
harm  shall  happen  through  him  to  our  Lord  the  King  or  to  the  realm. 

[There  are  some  persons  who  when  rxbout  to  be  arrested  flee  to  a  church  or  other 
religious  or  privileged  place,  and  keep  themselves  in  the  church  ;  in  this  case  there  is 
the  alternative  either,  to  come  into  the  king's  peace  and  stand  to  right,  if  any  one  will 
accuse  them,  or  acknowledge  the  crime  for  which  they  keep  themselves  in  church  ; 
and  so  they  may  elect.  In  this  case  if  one  confess  his  crime  and  elect  to  abjure  the 
realm,  he  should  choose  some  port,  by  wliitli  he  may  pass  to  another  land  beyond  the 
realm  of  England.  .  .  .  And  there  ought  to  be  computed  for  him  his  reasonable 
travelling  expenses  as  far  as  that  port  and  he  ought  to  be  forbidden  to  go  out  of  the 
King's  highway,  and  to  delay  anywhere  for  two  nights,  and  to  entertain  himself  any- 
where, and  to  turn  aside  from  the  higliway  except  from  great  necessity  or  for  the  sake 
of  lodging  for  the  night :  but  let  him  always  continue  along  the  straight  road  to  the 
port,  so  that  he  may  be  there  at  the  appointed  day,  and  may  cross  the  sea  as  soon  as 
he  finds  a  ship,  unless  he  be  hindered  by  the  weather.  But  if  he  does  otherwise  he 
shall  be  in  peril.  —  Bract.  135  6.] 


II. 

PRECEDENTS  OF  INDICTMENTS. 

1.    Murder  by  Poison. 

The  Jurors  for  the  Commonwealth  upon  their  oath  present  that  George  C.  Hersey 
of  etc.  on  the  third  day  of  May  in  the  year  of  our  Lord  eighteen  hundred  and  sixty, 
at  Weymouth  in  the  county  of  Norfolk,  in  and  upon  one  Betsey  Frances  Tirrell,  in 


APPENDIX.  nr.? 

the  peace  of  the  said  commonwealth  then  and  thoro  boiiiR,  wilfullv.  Woni-.tulv  an,i  of 
Lis  m;aice  aforethought,  did  i„ake  ui.  a«miuU,  and  t-j  li.r  ih.-  »u»d  lk-i«-,v  1  rai,.« 
Tirreil  did  fekmiou.sly,  wilfully  and  of  IiIh  n,ahee  afureiU..uKUi.  then  juid  il.rrr  k>«o 
and  administer  a  certain  lar-e  <iuanlity,  to  wit,  i«n  gnviiu  iu  w.ighi,  ..f  «  -.ruiu 
deadly  poison  called  strychnine,  lie,  the  Haid  (je..r>,'e  ('.  IUtm-v,  th.-n  and  thrn:  »eU 
knowing  the  same  to  be  a  deadly  \)um,u,  witii  intent  ilmi  the  Mud  lUnm,y  l-rMi^t* 
Tirreil  should  then  and  there  take  and  swallow  down  lliu  >aniu  inUj  htr  ImjJv.  aiMl 
that  the  said  Betsey  Frances  Tirreil,  the  said  Mtrythuiuo,  to  gi*en  uud  ».hiinii.unxl 
as  aforesaid,  did  then  and  there  take  and  Hwallow  into  In-r  Imj<1v,  and  l.v  r«.4*.<u 
thereof  became  then  and  tiiere  mortally  sick  ajid  diKlcmjMp-d  iu  ht-r  »«■!>'.  uni  of 
said  mortal  sickness  and  distemper  did  then  and  there  lanf;ui«h,  and  lanjjui'hiui,'  '"t 
the  space  of  one  half  hour  did  tiiere  live,  and  afterwards,  on  tho  diiv  aii<l  mat  ai«»ft^ 
said,  did  there  die  of  the  mortal  sickness  and  dihteni|>er  then  and  iht-rts  taniM  d  \<\  tti« 
poison  aforesaid,  so  as  aforesaid,  l)y  tiie  said  (Jeor^e  t'.  llersoy,  then  and  ihtn-  f"loui. 
ously,  wilfully  and  of  his  malice  aforethought  given  and  ailniiniatertd  Id  h«:r  ih«-  iua<l 
Betsey  Frances  Tirreil  •  and  so  tiie  jurors  aforesaid,  on  their  <*alh  aforv«uid,  ilo  mv 
and  present,  that  the  said  George  C  llersey,  her  the  luiid  lietJH-y  Fninc«a  lim-U,  •■ 
manner  and  form  aforesaid,  and  by  the  means  aforesaid,  at  Weymouth  iu  tho  couniv 
aforesaid,  feloniously,  wilfully  and  of  his  malice  aforeliiought,  did  Will,  pui»jn  and 
murder,  against  tho  peace,  etc. — Com.  v.  llersey,  2  AH  17a;  un/e,  p.  183.  Sec  alio 
Vaux's  Case,  ante,  p.  67. 

2.    Murder  by   Violence. 

The  jurors  for  the  Commonwealth  of  Massachusetts,  on  their  oath  prcwnt,  that 
John  L.  Chapman,  late  resident  of  Sherburne,  iu  the  county  of  Middlesex  afitrcftaid, 
laborer,  on  the  14th  day  of  September,  in  the  year  of  our  Lord  one  thouniui'l  tight 
hundred  and  fifty-three,  at  Sherburne  aforesaid,  with  force  and  arms,  in  and  u|^>n  om- 
Reuben  Cozzens,  in  the  peace  of  the  Commonwealtli  then  and  there  being,  did  iiiak«« 
an  assault,  and  that  the  said  John  L.  Chapman,  with  a  certain  axe,  of  the  value  of 
fifty  cents,  which  he,  the  said  John  L.  Chapman,  in  both  his  hands  then  and  there  lutl 
and  held,  the  said  Reuben  Cozzens,  in  and  upon  the  back  side  of  the  hea*l  of  iiim  the  aaid 
Reuben  Cozzens,  then  and  there  feloniously,  wilfully,  and  of  his  malice  afureihoughi. 
did  strike  and  bruise,  giving  to  the  said  Kcuben  Co/.zens,  then  and  there,  with  the  axr 
aforesaid,  in  and  upon  the  said  back  side  of  the  head  of  him  the  said  Heul>cn  i'oirr\»», 
one  mortal  wound,  of  which  said  mortal  wound  the  said  Heuben  Cozzens  then  and 
there  instantly  died.  And  so  the  jurors  aforesaid,  upon  their  <>.ath  afort-naid,  <lo  say 
that  the  said  John  L.  Chapman,  tlie  said  Reuben  Cozzens,  then  and  there,  in  manner 
and  form  aforesaid,  feloniously,  wilfully,  and  of  his  malice  aforethought,  did  kill  and 
murder;  against  the  peace  of  said  Commonwealth,  and  the  form  of  the  statute  in  such 
case  made  and  provided. — Com.  v.  Chapman,  11  Cush.  423. 

Eor  an  indictment  for  solicitation  to  murder,  see  Com.  i-.  Randolph,  anu,  p.  134. 

3.   Manslaughter  hij  Negligence. 

The  jnrors,  etc.,  present,  that  during  all  the  times  hereinafter  mentioned.  J  A.. 
hereinafter  in  this  count  mentioned,  wa.s  a  poor,  indigent  and  de.«titute  child  "f  a 
tender  age,  to  wit,  of  the  age  of  six  years,  and  wholly  unable  to  iiupix>rt,  provide  f..r 
and  take  care  of  himself;  and  the  said  T.  B.  P..  at  hi'«  request,  ha.l  the  can-.  ch.arRe, 
possession  and  custody  of  the  said  J.  A.,  and  had  undertaken  the  «np|«'rt  an.l  miin- 
teuance  of  the  said  J.  A.,  and  the  finding  and  provi.ling  the  <.aid  J.  -A.  with  re.v.nat.lT 
sufficient  and  proper  board  and  lodgirig,  f-r  reward  to  the  said  V  B  P  m  that  '-half, 
to  wit,  within  the  jurisdiction  of  the  said  Central  Criminal  Tourt ;  and  the  jumr^  »fo,^ 
said,  upon  their  oath  aforesaid,  do  further  present,  that  the  said  V  H  D  on  the  «ud 
28th  day  of  October,  in  the  year  of  our  F.or.l  1848,  an.l  on  diver,  .lay,  ^'^^'^^l^H". 
wards  and  before  the  death  of  the  said  J.  A.,  a.  hereina  ter  "-"^'''"'^  .  *  '^f  !*"  .^„  ^ 
the  Tooting  aforesaid,  in  the  county  of  Surrey  aforesaid,  and  ^^'^'"'J^'X'^^^]^ 
the  said  court,  in  and  upon  the  said  J.  A.  feloniously  d.d  make  direr,  -««lu.  »a 


968  APPENDIX. 

knowingly,  wilfully  and  feloniously  did  put,  place,  keep  and  lodge  the  said  J.  A.  for 
divers  long  spaces  of  time,  to  wit,  for  and  during  tlie  whole  of  those  days  and  times 
in  divers  rooms  and  apartments,  then  and  during  all  that  time  greatly  and  excessively 
overcrowded,  overcharged,  and  filled  to  excess  with  divers  and  very  many  other  infants 
and  persons,  and  then  also  being  in  an  ill-ventilated,  impure,  foul,  unwholesome  and 
unhealthy  state,  and  in  an  unfit  and  improper  state  for  the  said  J.  A.  to  be  put,  placed, 
kept  and  lodged  in.  By  means  of  which  said  putting,  placing,  keeping  and  lodging 
the  said  J.  A.  in  the  said  rooms  and  apartments,  he  the  said  J.  A.  afterwards,  to  wit, 
on  the  5th  day  of  January,  in  the  year  of  our  Lord  1849,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  of  the  said  court,  became  and  was  mortally 
sick  and  ill,  weak,  diseased,  disordered  and  distempered  in  his  body,  and  of  which  said 
last-mentioned  sickness,  illness,  weakness,  disease,  disorder  and  distemper  the  said  J. 
A.,  on  and  from  the  day  and  year  last  aforesaid,  until,  to  wit,  on  the  6th  day  of  January, 
in  the  year  of  our  Lord  1849,  as  well  at  the  parish  of  Tooting  aforesaid,  and  within  the 
jurisdiction  of  the  said  court,  as  at  the  parish  of  Saint  Pancras,  in  the  county  of  Mid- 
dlesex, and  within  the  jurisdiction  of  the  said  court,  did  languish,  and  languishing  did 
live,  and  then,  to  wit,  on  the  day  and  year  last  aforesaid,  at  the  parish  last  aforesaid, 
in  tlie  county  last  aforesaid,  and  within  the  jurisdiction  of  the  said  court,  of  the  said  last- 
mentioned  mortal  sickness,  illness,  weakness,  disease,  disorder  and  distemper  did  die. 
And  so  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  say,  that  the  said  P.  B.  1)., 
him  the  said  J.  A.,  in  manner  and  form  in  this  count  aforesaid,  feloniously  did  kill 
and  slay,  against  the  peace  of  our  Lady  the  Queen,  her  crown  and  dignity.  — 3  Cox 
C.  C,  App. 

4.  Larcenif. 

The  jurors,  etc.,  present  that  C.  D.,  late  of  B.,  in  the  county  of  S.,  laborer,  on  the 

first  day  of  June,  in  the  year  of  our  Lord ,  with  force  and  arms,  at  B.,  aforesaid,  in 

the  county  aforesaid,  one  silver  tankard,  of  the  value  of  fifty  dollars,  of  the  goods  and 
chattels  of  one  A.  B.,  then  and  there  in  the  possession  of  the  said  A.  B.,  being  found, 
feloniously  did  steal,  take,  and  carry  away  against  the  peace  of  said  Commonwealth, 
and  contrary  to  the  form  of  the  statute  in  such  case  made  and  provided.  Train  & 
Heard,  Prec  of  Lidict.  p.  341. 

See  also  Stanley  v.  State,  ante,  60.5 ;  Com.  v.  James,  ante,  645.  Indictment  for  re- 
ceiving stolen  goods  :  State  v.  Ives,  ante,  775.  For  obtaining  goods  by  false  pretences  : 
Com.  V.  Morrill,  ante,  160;  Reg.  v.  Mills,  ante,  727. 

5.  Burglary. 

The  jurors,  etc.,  present  that  A.  B.,  on  the day  of in  the  year  of  our  Lord 

about  the  hour  of  eleven  of  the  clock  in  the  night  of  the  same  day,  feloniously 

and  burglariously  did  break  and  enter  the  dwelling-house  of  one  C.  D.,  situate  in  the 
parish  of ,  in  the  county  of ,  with  intent  then  and  there  feloniously  and  burg- 
lariously to  steal,  take,  and  carry  away  the  goods  and  chattels  then  being  in  the  said 
dwelling-house ;  and  then  in  the  said  dwelling-house  feloniously  and  burglariously  did 

steal,  take,  and  carry  away  twenty  silver  spoons,  of  the  value  of ,  of  the  goods  and 

chattels  of  the  said  C.  D.,  then  being  found  in  the  said  dwelling-house.  — 6  Cox,  App., 
cxvi. 

For  an  indictment  for  maliciously  burning  a  vessel,  see  Reg.  u.  Faulkner,  ante,  213. 

6.  Nuisance  by  Smoke  and  Vapor. 
The  jurors,  etc,  present  that  C  D.,  late  of  etc.,  on  the  first  day  of  June,  in  the  year 
of  our  Lord  1853,  and  on  divers  other  days  and  times  between  that  day  and  the  day  of 
the  finding  of  this  indictment,  at  B.,  in  the  county  of  S,  unlawfully  and  injuriously 
did  erect  and  cause  and  procure  to  be  erected  certain  furnaces  and  ovens  for  the  burn- 
ing of  coke,  and  did  then  and  there  unlawfully  and  injuriously  cause  and  permit  great 
quantities  of  smoke  and  of  sulphurous  and  other  noxious,  unwholesome,  and  injurious 
vapor  to  arise  from  the  said  furnaces,  and  then  and  there  to  impregnate  the  air  near 


APPEKDIX.  9C9 

and  around  said  furnaces,  and  then  and  there  to  enter  t^  ^  ,lw«ti:«„  i. 
ate  near  the  said  furnaces  ;  to  the  .-reat  .1^,1,0.?  Jwelimphom^^  ,h.«  ..... 

then  and  there  living  and  i^hahitinge^r.^f:!^::::::  T'T^  "'  ""  '"^"^ 
^thore^sing  near  the  aa.e^  Train  .  hII:^-^:/;:;::;^:;- C;^  :^ 

7.    Perjury. 

The  jurors,  etc.,  present  that  heretofore  hefore  the  takinR  ..f  thin  inn„„.f.,n  to  wit 
on  the  10th  day  of  May.  1871.  at  Westnnnster.  in  the  county  ..f  .M.,|!ll.'.r.     ,  j  w..1 1" 
U.e  jur.sd.ct,on  of  the  Central  Criminal  Court,  before  thu"  I{i«ht  H..„   s.r  W.ll.m 
Bov,ll.  Kn.ght.  Her  Majesty's  Chief  Justice.  a.s.sigued  to  hol.i  plea-  iu  Il.^U 'Ir. 
Courts,  a  certain  .s«ue  duly  joined  in  an  action  of  ejectment  U-uvecM.  «»id  defend;^. 
Jhomas    Casro,   otherwise   called   Arthur   Orton.   otherwis.,  culled    H...,.r  ( -i.,,!.. 
Doughty    fichborne,  baronet,  as  plaintiff;  and   Franklin  Lu-^hinKton  and  the  l|.,o 
Dame    leresa  Mary  Josephine  Doughty  Tichborne  and  the  11..,,.  Williu.n  Stuartoo 
lienfrie  Arundell  as  guardians  of  Sir  Henry  Alfre.l  Jo*-ph  Doughtv  TichlH.n.e   l*ru- 
net,  an  infant,  as  the  defendant,  came  on  to  bo  tried  in  due  form  o(  law.  an.l  w.t^  il.ci. 
to  wit,  on  the  day  and  year  aforesaid,  and  on  divers  other  days  afurward.H,  an.l  Uf..re 
the  taking  of  this  inquisition  by  due  appointments  in  that  U-'half,  to  wit.  at  WtMn.in 
ster  aforesaid,  tried  by  a  jury  of  the  said  county  in  that  behalf  duly  «w.',ni  to  irr  the 
matters  in  question  in  the  said  issue  between  the  said  parties,  ujxju  which  trial  th« 
defendant  then  appeared  as  a  witness  for  and  on  behalf  of  him.Helf  w.  bciug  such  phuo- 
tiff  as  aforesaid  in  the  said  action,  and  was  then  ami  there,  to  wit.  by  and  under  hi« 
description  duly  sworn  and  took  his  corporal  oath  upon  the  Holy  (;o'>i|M-l  of  (mM   be- 
fore  the  said  Sir  William  Bovill,  that  the  evidence  which  he.  the  ^id  defendant  nh.mid 
give  to  the  court  there  and  to  the  said  jury  so  sworn  as  aforesaid  touching  the  matu-r 
then  in  question  between  the  said  parties,  should  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  the  said  Sir  William  Bovill  then  having  sullicient  and  c-ontjR-teut 
authority  to  administer  the  said  oath  to  him  in  that  behalf;  and  the  jun.m  aforesaid 
on  the  oath  aforesaid  do  further  present  that  upon  the  trial  of  the  fwid  i.s«ue,»-.  j..in«N| 
between  the  said  parties  aforesaid,  and  in  relation  thereto  the  following  (ju.  »ti..u* 
respectively  became  and  were  material,  that  is  to  say.  whether  he,  the  said  defen.iant, 
wa.s  Roger  Charles  Tichborne,  eldest  son  of  James  Francis  Tichlwme,  Ks»j.,  afu*rwanla 
Sir  James  Francis  Doughty  Ticliborne,  baronet,  now  deceased  ;  .  .  .  and  whether  the 
defendant  was  not  Arthur  Orton,  the  son  of  George  Orton,  of  Wappiiit'.  d.-<  .-.t^mI; 
.  .  .  and  the  jurors  first  aforesaid,  upon  their  oath  aforesaid,  do  further  |irt««Mit  that 
the  said  defendant  being  so  sworn  as  aforesaid,  not  having  the  fear  of  (Jod  Jx-forr  hi* 
eyes,  nor  regarding  the  laws  of  this  realm,  but  being  moved  and  se<luce<i  bv  the  ini>ti- 
gation  of  the  devil,  and  contriving  and  contending  to  prevent  the  <lue  courw  of  Law 
and  justice,  and  unjustly  to  aggrieve  the  said  defendants  in  the  .said  action,  t..  »it, 
upon  the  trial  of  the  said  i.ssue  on  the   10th  of  May,  1871,  upon  his  oath  aforf«aid 
falsely,  corruptly,  knowingly,  wilfully,  and  maliciously,  before  the  said  jun.m.  *.»wom 
as  aforesaid,  and  before  the  said  Sir  William   Hovill,  did  depose  and  swear  amonir< 
other  things  in  substance  and  to  the  effect  following,  that  is  to  say,  that  he,  the  said 
defendant,  was  Roger  Charles  Tichborne.  the  elde.'<t  son  of  the  .-ciid  Jamns  Krau.it 
Tichborne,  Esq..  afterwards  Sir  James  Francis  Doughty  Tichborne,  Itfironei,  drreasrd  ; 
.   .  .  that  he   was  not   Arthur  Orton.  the  son   of  Ceorge  Orton.  of  Wappin? ;  .  .  . 
whereas  in  truth  and  in  fact  he,  the  s.iid  Thoma.s  Castro,  otherwi.ne  callixl  .\  rthnr '  M<>n, 
otherwise  called  the  defendant,  was  not  and  is  not  Roger  Charles  Tichborne.  the  eldp*t 
son  of  James  Francis  Tichborne,  Esq.,  &c.  .  .  .  and  whereas  he  was  am!  is  A  rthnr 
Orton,  and  son  of  the  said  George  Orton,  of  Wapj.ing  aforesaid,  de<-«i»e«l       .  .  And 
80  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  th.it  the  .said  defendant  of  hi« 
own  wicked  and  corrupt  mind,  to  wit,  in  manner  and  form  aforeviid.  fahteiv.  wirkedlr. 
and  corruptly  did  commit  wilful  and   corrupt  perjury  to  the  great  di«plea«ur«  ui 


970  APPENDIX. 

Almighty  God,  in  contempt  of  our  Lady  the  Queen  and  of  her  laws,  to  the  eril  and 
pernicious  example  of  all  others  in  the  like  case  offending  and  against  the  peace  of  our 
Lady  the  Queen,  her  crown  and  dignity.  2  Law  Magazine  and  Review,  n.  s.,  1018. 
[Certain  apparent  errors  have  been  corrected.] 

["  Perjury,  by  the  common  law,  seemeth  to  be  a  wilful  false  oath,  by  one  who,  being 
lawfully  required  to  depose  the  truth  in  any  proceeding  in  a  course  of  justice,  swears 
absolutely  in  a  matter  of  some  consequence  to  the  point  in  issue,  whether  he  be  believed 
or  not."  —  1  Hawk.  P.  C,  Ch.  27,  b.  4.] 


APPENDIX.  970  a 


m. 


The  following  definitions  of  the  principal  crimes  are  taken  ehieflv  from  IlUck. 
stone's  Comraeutaries,  and  from  the  codes  and  hiaiutfi.  of  California.'  li.-jiana.  New 
York,  and  Ohio.  It  is  believed  that,  so  far  as  ilic  ominiou-law  .lehi.iiion.  „(  th»«« 
crimes  have  been  changed  in  any  jurisdiction  by  guiuto,  the  chauij.*  wiU  But 
materially  vary  from  those  here  given. 


Treason. 

Const.  U.  S.,  art.  3,  sec.  3.  Treason  against  the  Uiiite.l  StAt«8  shall  ronsint  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giviuK  iIkmu  aid  and  CMia. 
fort.  No  person  shall  be  convicted  of  treason  unless  on  the  tesiiiuuuy  of  two  wit- 
nesses to  the  same  overt  act,  or  on  confession  in  open  court. 

For  treason  in  England,  see  4  Bl.  Com.  74. 

N.  Y.  Penal  Code,  sees.  37-40.  Treason  against  the  people  of  the  sut«  cob- 
eists  in 

1.  Levying  war  against  the  people  of  the  state,  within  this  state  ;  or 

2.  A  combination  of  two  or  more  persons  by  force  to  usurp  the  government  of  the 
state,  or  to  overturn  the  same,  shown  by  a  forcible  attempt,  made  within  the  »uic, 
to  accomplish  that  purpose ;   or 

3.  Adhering  to  the  enemies  of  the  state,  while  separately  en[jagc<l  in  war  with  a 
foreign  enemy,  in  a  case  prescribed  in  the  constitution  of  the  United  Statcn,  or  givini; 
to  such  enemies  aid  and  comfort  within  the  state  or  elsewhere. 

Treason  is  punishable  by  death. 

To  constitute  levying  war  against  the  people  of  this  state,  an  actual  act  uf  war 
must  be  committed.     To  conspire  to  levy  war  is  not  enough. 

Where  persons  rise  in  insurrection  with  intent  to  prevent  in  general,  by  force  and 
intimidation,  the  execution  of  a  statute  of  this  state,  or  U)  foree  its  repeal,  thpy  are 
guilty  of  levying  war.  But  an  endeavor,  altiiough  by  nuuibtrs  ami  font-  '«f  arnK,  to 
resist  the  execution  of  a  law  in  a  single  instance,  and  for  a  private  purpua«,  is  not 
levying  war. 

Cal.  Pen.  Code,  sees.  37-38.  Treason  against  this  state  consists  only  in  levying  war 
against  it,  adhering  to  its  enemies,  or  giving  them  aid  and  comfort,  and  can  1«  com- 
mitted only  by  persons  owing  allegiance  to  this  state.  The  punishment  of  trfa*<>n 
shall  be  death. 

Misprision  of  treason  is  the  knowledge  and  concealment  of  treason,  without  other- 
wise assenting  to  or  partaking  in  the  crime.  It  is  punishable  by  impri«onm«nt  in 
the  state  prison  for  a  term  not  exceeding  five  years. 

(This  is  the  common  form  of  definition.     Ohio  inserts  the  word  "  knowingly.") 

Escape,  Rescue,  etc. 

4  Bl.  Com.  129-131.  An  escape  of  a  person  arrested  upon  criminal  yirortm 
by  eluding  the  vigilance  of  his  keepers  before  he  is  put  in  huM  in  al*>  an  ..ffpix* 
against  public  justice,  and  the  party  himself  is  j.unishaMo  by  (in^  or  impriiwiiin)^nt ; 
but  the  officer  permitting  such  escape,  either  by  negligence  or  connivanre,  ia  nsch 
more  culpable  than  the  pri.soner. 

Breach  of  pri.son  by  the  offender  himself,  when  committe<l  for  any  caiwe,  wa«  Mcmy 
at  the  common  law ;  or  even  conspiring  to  break  it :  but  thi*  •everity  i»  mitigated  \>j 

61« 


970  h  APPENDIX. 

the  statute  1  Edw.  II.,  which  enacts  that  no  person  shall  have  judgment  of  life  or 
member  for  breaking  prison,  unless  committed  for  some  capital  offence. 

liescue  is  the  forcibly  and  knowingly  freeing  another  from  an  arrest  or  imprisonment. 

Barretry. 

4  Bl.  Com.  134.  Common  barretry  is  the  offence  of  frequently  exciting  and  stirring 
np  suits  and  quarrels  between  his  majesty's  subjects,  either  at  law  or  otherways. 

N.  Y.  Pen.  Code,  sec.  132.  Common  barratry  is  the  practice  of  exciting  groundless 
judicial  proceedings. 

Maintenance. 

4  Bl.  Com.  134.  Maintenance  is  ...  an  officious  intermeddling  in  a  suit  that  no 
way  belongs  to  one  by  maintaining  or  assisting  either  party  with  money  or  otherwise 
to  prosecute  or  defend  it.  ...  A  man  may,  however,  maintain  the  suit  of  his  near 
kinsman,  servant,  or  poor  neighbour,  out  of  charity  and  compassion,  with  impunity. 

Cal.  Pen.  Code,  sec.  161.  Every  attorney  who,  either  directly  or  indirectly,  buys 
or  is  interested  in  buying  any  evidence  of  debt  or  thing  in  action,  with  intent  to  bring 
suit  thereon,  is  guilty  of  a  misdemeanor. 

Champerti/. 

4  Bl.  Com.  135.  Champerty,  campi-panitio,  is  ...  a  bargain  with  a  plaintiff  or 
defendant  campum  partire,  to  divide  the  land  or  other  matter  sued  for  between  them 
if  they  prevail  at  law ;  whereupon  the  champerter  is  to  carry  on  the  party's  suit  at 
his  own  expense. 

(These  crimes  are  obsolete  in  most  states.) 

Embracery. 

4  Bl.  Com.  140.  Embracery  is  an  attempt  to  influence  a  jury  corruptly  to  one  side 
by  promises,  persuasions,  entreaties,  money,  entertainments,  and  the  like. 

Extortion. 

4  Bl.  Com.  141.  Extortion  is  an  abuse  of  public  justice,  which  consists  in  any  officer's 
unlawfully  taking,  by  colour  of  his  office,  from  any  man,  any  money  or  thing  of  value, 
that  is  not  due  to  him,  or  more  than  is  due,  or  before  it  is  due. 

Perjury. 

4  Bl.  Com.  137.  Perjury  is  .  .  .  committed  when  a  lawful  oath  is  administered  in 
some  judicial  proceeding  to  a  person  who  swears  wilfully,  absolutely  and  falsely  in  a 
matter  material  to  the  issue  or  point  in  question. 

Subornation  of  perjury  is  the  offence  of  procuring  another  to  take  such  a  false  oath 
as  constitutes  perjury  in  the  principal. 

Cal.  Pen.  Code,  118.  Every  person  who,  having  taken  an  oath  that  he  will  testify, 
declare,  depose,  or  certify  truly  before  any  competent  tribunal,  officer  or  person,  in 
any  of  the  cases  in  which  such  an  oath  may  by  law  be  administered,  willfully  and  con- 
trary to  such  oath,  states  as  true  any  material  matter  which  he  knows  to  be  false,  is 
guilty  of  perjury. 

Ind.  Rev.  Stat.,  sec.  2006.  Whoever,  having  taken  a  lawful  oath  or  affirmation  in 
any  matter  in  which,  by  law,  an  oath  or  affirmation  may  be  required,  shall,  upon  such 
oath  or  affirmation,  swear  or  affirm  willfully,  corruptly,  and  falsely  touching  a  matter 
material  to  the  point  in  question,  shall  be  deemed  guilty  of  perjury.  .  .  . 

Oh.  Rev.  Stat.,  sec.  6897.    Whoever,  either  verbally  or  in  writing,  on  oath  lawfully 


APPENDIX. 


970 


administered,  willfully  and  corruptly  Htates  a  faUel.ood,  m  to  mt  material  matt*,  i«  a 
proceeding  before  any  court,  tril.uu^il  or  olli.-.-r  cr-aU-.l  bv  1-iw  ',  ;  ""^  '"■***'• '"  * 
.ion  ■„  wh;cU  »„  oath  .  a«„„H»,l  „,  law,  .  .^^.^i'^^,  ^  ".^i,  r  1:;^:^, 
lu  the  penitentiary  not  more  than  ten  nor  Iohh  than  thn-e  v.-im  "«pn«o^l 

N.  Y.  Pen    Code,  sec^.  90-99.  101.     A   p.-rson   who  aw^an.  or  aflir.n,  thai  h.  wOl 

truy  testify,  declare,  depo«o,  or  certify,  or  that  any  u.tin.ouv.  declanu. l.-^^i^T 

certificate,  affidavit,  or  other  writing  by  him  HubHcnlH-d.  i.  irue  iu  »,,  «^,'  ^' 
special  proceeding,  or  upon  any  hearing,  or  in.,«iry.  or  on  ai.v  circa-ion  in  wb'irh  a. 
oath  is  required  by  law.  or  is  necessary  for  the  prosecution  .,r  d.f.-n^.  „(  »  ..htau.  nir  ht 
or  for  the  ends  of  public  justice,  or  may  lawfully  U  adiniuwt.-riMi  „..I  who  it.  .uch 
action  or  proceeding,  or  on  such  hearing.  iiKpiiry  .^r  other  .K•ca^i.,n,  willfullv  and  know 
ingly  testifies,  declares,  deposes  or  certifies  falsely,  in  anv  maU-rial  n.atii  r  .,r  ^atM 
in  his  testimony,  declaration,  deposition,  affidavit,  or  certificate,  any  material  mau«r 
to  be  true  which  he  knows  to  he  false,  is  guilty  of  jn-rjurv. 

It  is  no  defense  in  a  prosecution  for  perjury  that  an  oa'th  was  *dmini»t«n-d  or  Ukta 
in  an  irregular  manner.  .  .  . 

It  is  no  defense  to  a  prosecution  for  perjury  that  the  dcfenrlant  won  i.-.i  comw-u.nl 
to  give  the  testimony,  deposition,  or  certificate  of  which  fal«eho.Hl  i^  alli.g.Hl.  It  u 
sufficient  that  he  actually  was  permitted  to  give  such  testimony  or  make  huch  druj«i- 
tion  or  certificate. 

It  is  no  defense  to  a  prosecution  for  perjury  that  the  defendant  did  not  know  th« 
materiality  of  the  false  statement  made  by  him  ;  or  that  it  did  not  in  f:ut  affiNt  iho 
proceeding  in  and  for  which  it  was  made.  It  is  sufficieut  that  it  waa  malarial,  and 
might  have  affected  such  proceeding. 

An  unqualified  .statement  of  that  which  one  does  not  know  to  be  true  it  eqairakot 
to  a  statement  of  that  which  he  knows  to  be  false. 

Affraif. 

4  Bl.  Com.  145.  Affrays  (from  affraier,  to  terrify)  are  the  fighting  of  two  or  more 
persons  in  some  public  place,  to  the  terror  of  liis  majesty's  .><ulijei-t» :  f<»r,  if  the  fight- 
ing be  in  private,  it  is  no  affray  but  an  assault.  Affrays  may  Ih;  8up|>re.^a<■d  by  any 
private  person  present,  who  is  justifiable  in  endeavouring  t«»  part  the  romhaunlii, 
whatever  consequence  may  ensue.  But  more  especially  tlie  constable,  or  nthrr  wimilar 
oflScer,  however  denominated,  is  bound  to  keep  the  peace ;  and  Uj  that  purp<i«w>  may 
break  open  doors  to  suppress  an  affray,  or  apprehemi  the  affrayers ;  and  mav  eiU>«T 
carry  them  before  a  justice,  or  imprison  them  by  his  own  auth'jrity  f<>r  a  conrenirtit 
space  till  the  heat  is  over ;  and  may  tlien  perliaps  also  make  them  find  gnrttie*  for 
the  peace. 

Riot,  etc. 

4  Bl.  Com.  146.  Riots,  routs,  and  unlawful  assemblies,  mu.«t  have  threo  p*rm>n#  at 
least  to  constitute  them.  An  unlawful  a.ssembly  is  when  three  or  m<>rc  d'>  ajwrmU* 
themselves  together  to  do  an  unlawful  act,  aa  to  pull  down  enc|i)«iir<»s,  to  dc*trny  a 
warren  or  the  game  therein ;  and  part  without  doing  it.  or  making  any  m<>(ii>n 
towards  it.  A  rout  is  where  three  or  more  meet  to  do  an  nnlawful  .lot  ui^m  a  mmmon 
quarrel,  as  forcibly  breaking  down  fences  upon  a  right  claimed  of  romni'n  or  of  way  ; 
and  make  some  advances  towards  it.  A  riot  i.s  where  three  or  morf  artoallr  do  an 
unlawful  act  of  violence,  either  with  or  without  a  common  ran»e  or  qnarrrl  a«  if 
they  beat  a  man  ;  or  hunt  and  kill  game  in  another'.")  |iark,  cha.M>,  warrrn.  or  li»*rty  ; 
or  do  any  other  unla^vful  act  with  force  and  violence;  or  even  do  a  lawful  »ct,  aa 
removing  a  nuisance,  in  a  violent  and  tumultuous  manner. 

Forcible  Entry. 
4  Bl.  Com.  148.    Forcible  entry  or  detainer  \n  committ*^!  by  rinlonily  taking  «r 
keeping  possession  of  lands  and  tenements  with  mcnacea,  force  and  arm».  and  tritkovt 

the  authoritv  of  law.     (So  Ind) 


970  ^  APPENDIX. 

Cal.  Pen.  Code,  sec.  4i  8.  Every  person  using,  or  procuring,  encouraging,  or  assist- 
ing another  to  use,  any  force  or  violence  in  entering  upon  or  detaining  any  lands  or 
other  possessions  of  another,  except  in  the  cases  and  in  the  manner  allowed  by  law,  is 
guilty  of  a  misdemeanor.     (So  New  York.) 

Murder. 
See  ante,  pp.  461,  471. 

Manslaughter. 

See  ante,  p.  473. 

See  a  division  of  this  crime  into  degrees  in  New  York,  Pen.  Code,  sees.  189  to  201. 

Mayhem. 
See  ante,  p.  419. 

Bape. 
See  ante,  pp.  419,  455. 

Rohhery. 
See  ante,  pp.  419,  699. 

Assault  and  Battery, 
See  ante,  pp.  420-434. 

Arson. 

See  ante,  p.  797. 

For  degrees  of  arson,  see  N.  Y.  Pen.  Code,  sees.  486-488. 

Burglary. 
See  ante,  p.  780. 
For  degrees  of  burglary,  see  N.  Y.  Pen.  Code,  sees.  496-498. 

Larceny  and  Kindred  Crimes, 

See  ante,  pp.  488  S.,  706,  718,  758. 

Cal.  Pen.  Code,  sees.  484,  503,  532.  Larceny  is  the  felonious  stealing,  taking, 
carrviug,  leading,  or  driving  away  the  personal  property  of  another. 

Embezzlement  is  the  fraudulent  appropriation  of  property  by  a  person  to  whom  it 
has  been  intrusted. 

Every  person  who  knowingly  and  designedly,  by  false  or  fraudulent  representation 
or  pretenses,  defrauds  any  other  person  of  money  or  property,  or  who  causes  or  pro- 
cures others  to  report  falsely  of  his  wealth  or  mercantile  character,  and  by  thus 
imposing  upon  any  person  obtains  credit,  and  thereby  fraudulently  gets  into  possession 
of  money  or  property,  is  punishable,  .  .  . 

N.  Y.  Pen.  Code,  Sec.  528.  A  person  who,  with  the  intent  to  deprive  or  defraud 
the  true  owner  of  his  property,  or  of  the  use  and  benefit  thereof,  or  to  appropriate  the 
same  to  the  use  of  the  taker,  or  of  any  other  person,  either, 

1.  Takes  from  the  possession  of  the  true  owner,  or  of  any  other  person  ;  or  obtains 
from  such  possession  by  color  or  aid  of  fraudulent  or  false  representation  or  pretense, 
or  of  any  false  token  or  writing ;  or  secretes,  withholds,  or  appropriates  to  his  own 
use,  or  that  of  any  person  other  than  the  trne  owner,  any  money,  personal  property, 
thing  in  action,  evidence  of  debt  or  contract,  or  article  of  value  of  any  kind  ;  or 

2.  Having  in  his  possession,  custody,  or  control,  as  a  bailee,  servant,  attorney, 
agent,  clerk,  trnstee,  or  officer  of  any  person,  association,  or  corporation,  or  as  a  puViHc 
officer,  or  as  a  person  authorized  by  agreement,  or  by  competent  authority,  to  hold  or 
take  such  possession,  custody  or  control,  any  money,  property,  evidence  of  debt  or 


APPENDIX.  970  e 

contract,  article  of  value  of  any  nature,  or  thing  in  action  or  poMMsion,  appr.prlatn. 
the  same  to  his  own  use,  or  that  of  any  other  jK-rsou  other  than  the  iruo  umuta  «r 
person  entitled  to  the  benefit  thereof ; 

Steals  such  property,  and  is  guilty  of  larceny. 

Malicioui  Mitchief. 

4  Bl.  Com.  244.  Malicious  mischief,  or  damage,  u  the  next  upeeiet  of  injury  to 
private  property,  which  the  law  considers  as  a  pi\hlic  crimi'.  Thin  i*  nuch  u  ia  dime, 
not  animo  furandi  or  with  an  intent  of  gaininj^  hy  another'*  l<m«  ;  which  \»  •uin*. 
though  a  weak  excuse:  but  either  out  of  a  spirit  of  wanUjn  cruc-Ur,  or  hlark  and 
diabolical  revenge.  In  which  it  bears  a  near  relation  to  the  crinip  of  ar»on ;  (ur  m 
that  affects  the  habitation,  so  this  docs  the  other  proj)erty,  of  individuah. 

Forgery. 

4  Bl.  Com.  247.  Forgery  or  the  crimen  falsi  is  .  .  .  tlie  fraudulfnt  ntakitig  or 
alteration  of  a  writing  to  the  prejudice  of  another  man's  right. 

Oh.  Rev.  Stat.  sec.  7091.  Whoever  falsely  makes,  alters,  fi>rj;e8,  coimterfciUi,  printa 
or  photographs  any  (here  are  enumerated  such  instrumont.t  as  ni.iy  Ik)  flirted)  with 
intent  to  defraud  ;  or  utters  or  publishes  as  true  ami  genuine  any  such  faliw,  altcrv<l, 
forged,  counterfeited,  falsely  printed  or  photographed  matter,  knowing  the  name  to 
be  false,  altered,  forged,  counterfeited,  falsely  printed  or  photographed,  witli  intent  to 
defraud,  is  guilty  of  forgery. 

(This  is  substantially  the  form  of  statute  in  most  states.  For  degrees  of  forgery, 
see  N.  Y.  Pen.  Code,  sees.  509-519.) 

Piracy. 

4  Bl.  Com.  72.  The  offence  of  piracy  by  common  law  consists  in  committing  thoM 
acts  of  robbery  and  depredation  upon  the  high  seas  wliich,  if  conimitted  ujwn  land, 
would  have  amounted  to  felony  there. 

2  Bish.  Crim.  Law,  sec.  1058.  Piracy  is  any  forcible  depredation  on  the  high  •«•» 
perpetrated  in  general  hostility  to  mankind  for  the  gain  or  other  private  ends  of 
the  doers. 


INDEX. 


ABANDONMENT,  what  is,  Edwards,  012. 
ACCESSORY,  who  is,  387;  Clayton,  388;  Brown,  389. 

how  punished,  Phillips,  389  ;  Stariii,  390. 
ACT  to  be  a  crime  must  concur  with  int«iit.     See  Lnte.st. 

of  injured  party.     See  Concltkkent  Neoligenck. 
ADULTERER,  larceny  by.     See  Larceny. 
AGENT  responsible  for  crime  though  committed  for  principal,  Hadley,  372. 

innocent,  377 ;  Baunon,  379. 
ALLEGATION.     See  Indictment;  Name;  Time;  Place;  DEscRxmoN. 
AMENDMENT  of  indictment,  McCarty,  34;  Sexton,  45. 

in  New  York,  35. 
ANIMALS,  whether  subject  of  larceny.  Anon.,  490;  Searing,  491;  Cheafor, 
492;  Shickle,  496,  Mullaly,  502;  Robinson,  721. 

larceny  by  killing,  Townley,  577. 
APPEAL  of  homicide  and  larceny,  examples  of,  Castell  v.  Bambridge,  420; 

959,  et  seq. 
ARRAIGNMENT,  12. 
ARREST,  10. 

when  one  may  be  killed  in  resisting,  Compton,  316;  Clark,  319, 

right  of  resistance  to,  Creighton,  339. 

homicide  in  resisting.     See  Murder  ;  Manslaughter. 
ARSON,  requisites  of,  797. 

of  what  buildings  may  be  committed,  Anon.,  797;  Holmes,  797. 

not  of  one's  own  house.  Holmes,  797. 

unless  another's  is  thereby  burned,  Isaac.  799. 

what  is  sufficient  burning  for,  Tucker,  800. 
ASSAULT   AND   BATTERY,  definition  of,  420. 

by  exposure,  Halliday,  427 ;  Renshaw,  434. 

by  unloaded  weapon,  White,  4-50. 

by  poison,  Stratton,  451 ;  see  Clarence,  438. 

by  interference  with  horse,  Moore,  453. 

whether  justified  by  defence  of  land,  Moore.  453. 

effect  upon,  of  consent  obtained  by  fraud,  Case,  435;  «ee  Clarence,  43d. 

how  far  adequate  means  are  necessary  to,  Lee  Kong,  142. 
ASYLUM,  right  of  fugitive  from  justice  to,  Ker  r.  Illinois,  939. 
ATTEMPT  is  a  misdemeanor,  Roderick,  127. 

bow  far  act  necessary  to,  Sutton,  125. 

must  come  somewhat  near  to  a  crime,  Stephens,  130. 


972  INDEX. 

ATTEMPT  —  continued. 

to  do  act  impossible  of  accomplishment,  Collins,  137;  Green,  139;  Mc- 
Donald, 141 ;  Lee  Kong,  142. 
to  do  act  by  inadequate  means,  139  n. ;  see  Green,  139. 
to  do  act  not  in  fact  criminal,  Malin,  127. 
voluntary  abandonment  of,  Glover,  133. 
to  obtain  by  false  pretences,  Mills,  727. 
AUCTION,  stifling  competition  at,  Levi  v.  Levi,  841,  n. 
AUTHORIZATION  by  government  as  justification  for  crime,  311;  Lesley, 

311;  Knoxville,  313. 
AUTREFOIS  CONVICT  OR  ACQUIT.      See  Former  Conviction  or 
Acquittal. 

BAIL,  10. 

BAILEE,  larceny  by.    See  Larceny. 

BARRET  OR,  indictment  of,  24. 

BATTERY.    See  Assault. 

BENEFIT  to  public  no  excuse  for  crime,  Caldwell,  177. 

BENEFIT  OF  CLERGY,  14,  16. 

BOYCOTT,  whether  criminal.  Crump,  833. 

BREAKING  BULK,  larceny  by.     See  Larceny. 

BRIBERY  or  soliciting  bribe,  criminal,  Walsh,  128. 

BURGLARY,  requisites  of,  780. 

what  must  be  broken,  780  ;  Anon.,  781. 

what  is  dwelling-house,  781 ;    Anon.,  782;   Lyons,  784;  Davies,  785; 
Mason,  788. 

time  of,  780,  781. 

both  breaking  and  entry  necessary,  781.     See  Fidling,  783. 

what  is  entry,  781;  Resolution,  782;  Walker,  794. 

what  is  breaking,  LeMott,  783;  Gray,  784;  Johnson,  785;  Steward,  786; 
Stephenson,  787. 

intention,  780;  Fidling,  783. 

breaking  of  shop,  when,  Quinn,  789. 

statutory.  Mason,  788;  Quinn,  789;  Walker,  794. 

form  of  indictment  for,  968. 

averment  of  ownership  in  indictment  for,  Quinn,  789. 
BURNING,  what  is,  Tucker,  800. 

one's  own  house.  Holmes,  797;  Isaac,  799. 

CARRIER,  larceny  by.    See  Larceny  from  Bailee,  by  Breaking  Bulk. 

larceny  from,  Little,  657. 
CHEAT,  Wheatley,  97. 
CLERGY,  benefit  of,  14,  16 

COERCION  of  wife  by  husband,  Anon.  272 ;  Anon.  273 ;  Dykes,  274 ;  Daley,  275. 
of  tenant  by  lord,  McGrowther,  273. 

See  Compulsion. 
COMMAND  of  military  or  naval  officer,  how  far  justification  for  crime,  313  n.; 

Clark,  319;  Jones,  368. 
COMMITMENT,  10. 


INDEX.  973 

COMMON   DESIGN,  acts  in  pureuauco  of,  Aahton,  392;  Kuloff,  S»2;  AUeo, 

394;  Lucas,  396. 
COMMON    ENTERPRISE,    all   engaged  in,   are   guilty   of    whole   rwuil, 

Salmon,  189. 
COMMON    LAW  of  America,  what  is,  Knowlton,  1;  813. 
how  far  in  force  in  Federal  courts,  Hudson,  3. 
law  of  parliament  part  of,  855. 
Christianity  part  of,  Taylor,  90. 
COMPULSION,  how  far  a  justification  for  crime,  McCarthy,  364;  CruUhl«y, 

367. 
CONCURRENT   NEGLIGENCE  of  third  party  uo  excuae,  Swindell.  1(17; 

Haines,  170;  Davis,  171. 
CONDONATION,  151 ;  Slattery,  151. 
CONSENT,  what  is.  Case,  435;  Clarence,  438. 

effect  of,  in  caae  of  assault,  Martin,  140;  146  n. ;  Case,  435 ;  Clarence,  431*. 
to  dangerous  act,  Bradshaw,  140. 
to  unlawful  act,  Wright,  145;  CoUberg,  148. 
to  pass  possession,  what  is,  Ashwell,  566;  Edwarda,  61'-'. 
conditional.  Hands,  614;  Mitchum,  016. 
tacit,  Leigh,  632 ;  see  Carrier,  638. 
effect  of  fraud  upon,  Case,  435. 

effect  of  mistake,  whether  possession  passes,  Ashwell,  566;  Flower.  574. 
whether   title  passes,   Middleton,  617;    Wolfstein,    029;    Atkiujwn. 
660;  Prince,  660;  Buckmaster,  603;  Russett,  671. 
See  Detection. 
CONSEQUENCES,  what  are  chargeable  criminally  to  defendant.  Mitch.-U, 

378;  Towers,  425;  Halliday,  427;  Hendrickson,  430;  Senic,  485. 
CONSPIRACY,  what  is  ancient  statutory  crime  of,  801;  Poulterers,  801. 
is  crime  at  Common  Law,  98,  102,  802. 
criminal,  though  no  act  done,  Edwards,  804. 
what  acts  of  are  criminal,  Edwards,  804;  Turner,  805;  Pywell,  807;  W»r- 

burton,  808;  Prius,  810;  Smith,  811;  Kostenbauder,  814. 
must  be  a  combination  to  do  an  act,  Pywell,  807. 
to  cheat,  Hudson,  158. 
to  charge  parish  with  pauper,  Edwards,  804. 
against  trade,  816  et  seq 
to  spread  false  rumor,  819. 
by  employees  to  affect  action  of  employer,   Joumeymen-TaUors,   92n, 

Hunt,  821 ;  Donaldson,  828. 
to  boycott,  Crump,  833. 

by  pools  and  corners,  Morris  Run  Coal  Co.  ».  Barclay  Coal  Qi.,  853. 
by  stifling  competition  at  auction,  Levi  v.  Levi,  841  n. 
CONSTRUCTION  of  statute.     See  Statute. 

CONSTRUCTIVE   INTENT,    whether   sufficient.    Anon.,  2^1 .    Blackliam. 
202;  Bruce,  202;  Franklin,  203;  Adams,  204;  Mink,  206. 
may  supply  place  of  similar  specific  intent,  208;  Cror^,  209;  LaUm.r.  •    . . 
Tt  enough  to  supply  place  of  a  different  specific  mtent,  PembhU>o.  ilO. 
Faulkner,  213. 
CONSULS,  jurisdiction  of,  Wildenhus,  925. 
CONTEMPT,  what  is,  858. 

all  courts  of  record  may  punish  for,  856. 


974  INDEX. 

CONTEMPT  —  continued. 

by  disregarding  order  of  court,  Hall,  842 

by  speaking  ill  of  justice,  Revel,  854. 

of  House  of  Commons,  Murray,  854. 

by  prejudicing  course  of  justice,  Skip  worth,  856. 

by  disturbing  the  court-room  or  disobeying  court's  orders,  as  to  decorum, 

Copp,  865;  Terry,  869. 
in  an  ofi&cer  o£  court,  by  malfeasance,  Cartwright,  867. 
procedure,  867. 
may  be  punished  summarily,  without  trial  and  in  absence  of  party, 

Terry,  869. 
summary  punishment  of,  not  contrary  to  Magna  Charta,  880. 
what  punishment  is  proper  for,  Robinson,  882. 
CONTRIBUTING  ACTS.     See  Concurrent  Negligence. 
CONTRIBUTING   CAUSE,  where  injury  aggravated  by  pre-existing  disease, 

O'Brien,  433. 
CONTRIBUTORY  negligence  no  excuse  for  crime,  Rew,  163;  Holland,  164; 

Dalloway,  165 ;  Kew,  165. 
"  CORNERS,"  Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,  839. 
CORPORATION  may  be  convicted  of  crime.  New  Bedford  Bridge,  277. 
may  be  fined  for  misdemeanor,  853. 

directors  of,  may  be  punished  jointly  with  corporation,  853. 
indictment  of,  Newburyport  Bridge,  37;  Fitchburg  Railroad,  63. 
CORRECTION  of  child  must  not  be  excessive,  315;  Griffin,  315. 
COUNTS  of  indictment,  joinder  of,  Castro,  56,  58  n.  ;  61  n. 
different  crimes  may  be  joined,  58. 
whether  misdemeanor  and  felony  may  be  joined,  58  n. 
for  different  felonies  not  tried  together,  59. 
for  different  misdemeanors  may  be  tried  together,  59. 
whether  more  than  one  crime  may  be  charged  in  one  count,  Tuck,  62. 
verdict  on  several  for  same  offence,  Fitchburg  Railroad,  63;  Claasen,  65. 
CRIME,  what  is,  as  distinguished  from  political  proceeding,  Hing  Quong 
Chow,  123. 
what  acts  constitute,  95  et  seq. 

must  be  such,  both  when  done  and  when  punished,  Marshall,  5. 
against  God  and  religion,  Smith,  46;  Taylor,  96. 
against  administration  of  justice,  Anon.,  96. 
against  public  duty,  Crouther,  95;  Callaghan,  116. 
against  decency,   Delaval,  101;  Lynn,  103;  Sharpless,  113;  114  n.;  Kana- 

van,  115;  116  n. 
against  public  health,  Burnett,  104. 
against  public  security,  Beatty  v.  Gillbanks,  105;  110  n. 
against  public  cruelty  to  animals,  Teischer,  108. 
against  public  property,  Eckert,  110. 
against  elections,  Silsbee,  111. 
against  private  property,  Wheatly,  97 ;  Blake,  102. 
against  private  health.  Wing,  119. 
of  injured  party  no  excuse  for  criminal  act,  Stratton,  157;  Anon.,  158; 

Hudson,  158;  Morrill,  160;  McCord,  162. 
suicide  is,  Mink,  206. 

See  Attempt;  Conspiracy;  Nuisance;  Solicitation. 


INDEX.  975 

CUMULATIVE   SENTENCE,  Castro,  56;  61  n. 

CUSTODY.     See  Possession. 

CUSTOM,  how  far  a  justification  for  crime,  lleed,  369;  371  n. 

DAYTIME,  what  is,  780,  781. 

DEFENCE,  what  force  may  be  used  in,  320;    Anon.,  329;    II«wlvtt,    82I>; 

Shorter,  330;  Stoffer,  331 ;   Doiiueily,  338;  Sherman,  341. 
of  another,  343;  Ilose,  343;  Cook,  315;  Anon.,  M(]. 
of  a  dwelling  Anon.,  340;  Cooper,  317;  Wild,  317;  Patterson,  348. 
of  personal  property,  Donahue,  3-j3. 
of  land,  Moore,  453. 

DESCRIPTION,  what  sufficient  in  indictment,  Mansfield,  50;  llaakini,  M; 
Clair,  93. 
how  far  to  be  proved.  Noble,  52  ;  Stone,  54. 

DETECTION,    effect    of  acquiescence    of   injured    party   for   purpose  of, 
McDaniel,  152  ;  Eggington,  154;  Martin,  150. 

DIRECTORS  of  a  corporation  may  be  punished  jointly  with  it,  85;J. 

DISBARMENT,  not  technically  a  criminal  process,  Ilardwick,  881. 

may  be  ordered  by  court,  Robinson,  882. 

procedure  upon,  Robinson,  882;  Wall,  885. 

cause  for,  Wall,  885. 

DISORDERLY  HOUSE,  indictment  for  keeping,  24. 

DISTURBING  religious  meeting  criminal,  Sinitli,  46. 

DOGS,  whether  subject  of  larceny,  Mulialy,  502. 
of  obtaining  by  false  pretences,  Robinson,  721. 

DOUBT,  which  of  two  committed  the  act  prevents  conviction,   Richard.'jon, 
166.    But  see  Common  Enterprise. 

DUPLICITY,  Tuck,  62. 

how  taken  advantage  of,  63. 

DWELLING-HOUSE,  what  is,  781 ;  Anon.,  782;  Lyons,  781;   Davies,  7^5; 
Mason,  788;  Quinn,  789;  Anon.,  797. 
crimes  against,  780  et  seq. 
burning.     See  Arson. 
burning  one's  own,  Holmes,  797;  Isaac,  799. 
what  may  be  done  in  defence  of.     See  Dekknce. 

EMBEZZLEMENT,  distinction  between  larceny  and,  O'Malley,  518;  B.-vmIt, 
525;  Ryan,  543;  Headge,  706;  Berry,  714. 
■what  is,  Cullum,  707;  Barnes,  710;  Hays,  711;  Foster.  715. 
intent  required  for.  Hurst,  710. 
ESCAPE,  what  force  may  be  used  to  prevent,  Clark,  319. 
EXAMINATION,  10. 
EXTRADITION,  nature  of  right  of,  Ker  v.  Illinois,  939. 

for  one  crime  and  trial  for  another,  942  ;  Lascelles  v.  G«X)rpi».  951 
under  Constitution,  for  what  crimes,  Kentucky  v.  Denniaon,  943. 
how  far  enforceable,  Ifn'd. 
who  is  fugitive  from  justice,  Jonea  r.  Leonard,  950. 


976  iKDEX. 

FALSE   PRETENCES,  OBTAINING    PROPERTY   BY,   distinction    be- 
tween larceny    and,    628 ;    651 ;    Atkinson,  660  ;  Prince,  660  ;    Buck- 
master,    663;    Solomons,  668;  Russett,  671 ;  Adams,  720. 
requisites  of  crime,  Drew,  744. 
title  must  be  obtained,  Kilham,  718. 
or  must  be  intended  to  pass,  Adams,  720. 
what  property  subject  of,  Robinson,  721 ;  Black,  723. 
intent  required,  Tiiomas,  722. 

pretence  must  be  more  than  mere  promise,  Goodhall,  725  ;  Jennison,  742 ; 
748. 

must  be  for  purpose  of  obtaining,  Wakeling,  726. 
may  be  by  acts,  Barnard,  727,  749. 
must  be  believed.  Mills,  727. 

in  course  of  business  transaction,  Bryan,  729  ;  Goss,  737. 
by  false  check,  Drew,  744. 
credibility  of,  Norton,  750. 
obtaining  as  charitable  aid,  Whitcomb,  751. 
remoteness  of  pretence,  Harkins,  752. 

criminal,  though  the  fraud  was  mutual,  Morrill,  160  ;  McCord,  162. 
FALSE  RUMOR,  spreading,  819. 
FALSE  TOKENS,  cheating  by,  98. 

FALSE  WEIGHTS  AND  MEASURES,  cheating  by,  98. 
FELONY,  whether  count  for,  and  for  misdemeanor  may  be  joined,  58  n. 
two  felonies  cannot  be  tried  together,  59. 
may  be  new  trial  for  error  in  America,  Green,  70. 

what  force  may  be  used  to  prevent,  Compton,  316 ;  Dadson,  817  ;  Murphy, 
318;  Clark,  319. 
FINDER,  of  property,  right  of.  Merry  v.  Green,  548;  Thurborn,  551;  West, 

561 ;  Titus,  563. 
FISHERIES,  right  to  regulate  within  three-mile  limit,  Manchester,  930. 
FORESTALLING,  816  :  817  ;   Lombard,  818. 

FORMER  CON\^CTION    or    ACQUITTAL,    on   insufficient   indictment, 
Vaux,  67  ;  Loud,  72. 
continuance  by  consent  of  defendant  after  jury  impanelled,  Deane,  69. 
on  trial  before  magistrate  procured  by  defendant,  Alderman,  70. 
set  aside  on  defendant's  exceptions,. Green,  70. 
defendant  convicted  of  manslaughter  on  indictment  for  murder,  Brennan, 

74. 
on  certain  counts  of  indictment  where  new  trial  is  secured  by  defendant, 

75. 
jury  discharged  for  misconduct,  Simmons,  76. 
discharge  of  jury  upon  disagreement,  76. 
what  offences  are  identical :    burglary,  Vandercomb,  78. 
principal  and  accessory.  Plant,  79. 
murder  and  wounding  with  intent  to  kill,  Calvi,  80. 
manslaughter  and  assault,  Morris,  82. 
similar  statutory  offences,  Wemyss  v.  Hopkins,  86. 
riot  and  assault,  Ingles,  88. 

wounds  inflicted  at  same  time,  Damon,  88  ;  89  n. 
larceny  and  robbery,  Lewis,  89  ;  McGowan,  90. 
embezzlement  of  goods  differently  described,  Clair,  93. 
identity  of  offences  to  be  proved  in  pais,  McGowan,  90. 


INDEX-  977 

FORTUNE-TELLING,  crime  of,  757  n. 
FRAUD,  effect  of  upon  consent,  CaKe,  435 ;  Clarence,  438. 
upon  possession,  Slowly,  510;   Laniian,  521. 
may  supply  place  of  breakiug  iu  burglar^-,  Ia:  Molt.  783. 

GAME,  injury  caused  in  course  of,  Bradshaw,  146. 

GAMING-HOUSE,  indictment  for  keeping,  24. 

GAS,  subject  of  larceny,  Shaw,  5<J1  ;  WliiU-,  5<J6. 

GOVERNMENT,  authorization  by,  as  juatiiicatioo  of  crime,  311 ;  Lm1«t.  311 » 

Knoxville,  313. 
GRAND  JURY,  11. 

only  body  which  can  amend  indictment,  McCarty,  34  ;  Sexton,  45. 

HABEAS  CORPUS,  writ  of,  871. 
HIGHWAY,  indictment  for  defect  in,  24. 
HOMICIDE,  requisites  of,  418. 

See  Murder;  MASsi.AUonTEH. 
HOUSE  of  COMMONS,  Contempt  of,  Murray,  854. 

IGNORANCE  OR   MISTAKE  of  fact  may  excuse  crime,  279  ;  L«vett.  279  ; 

332. 
whether  an  excuse  in  statutory  crimes.  Anon.,  284;  Tinkler,  2^o;  Tol- 

son,  286  ;    Myers,  302  ;    Birney,   303 ;    Mash,  3f>l ;    Boyntoii,  306 ; 

307  n.;  Thompson.  308. 
of  law  no  excuse  for  crime,  279  ;  Esop,  282.     See  Bailey,  250. 
effect  of,  upon  specific  intent,  Hall,  281  ;  Towse,  283. 
no  excuse  in  statutory  crimes,  Goodenow,  309. 
ILL-FAME,  indictment  for  keeping  house  of,  24. 
INDICTMENT,  11. 
Caption  of,  11. 

principles  of,  same  as  of  declaration,  58. 
general  requisites  of,  18;  Pray,  22;  35. 
unseemly  requirement  of  nicety  in,  a  reproach  to  law,  18  n. 
repugnancy,  18;  Pray,  22. 

must  state  all  elements  of  crime.  Brown,  19;  Perripo.  27. 
must  state  facts  inconsistent  with  innocence,  Brown,  19;  Bean,  S8. 
charge  contra  pacevi,  20. 
surplusage.  Pray,  22;  Noble,  52;  Stone.  54. 
on  statute  may  require  more  than  language  of  statute.  24;  Perrigo,  27; 

Bean,  38. 
exception  in  statute,  how  pleaded  in.  Hirn.  25.     See  Brown,  19. 
particularity  required.  Crnikshank.  28;  Ledgingbam.  36. 
for  second  offence  must  allege  former  conviction,  Harrington,  31. 
amendment  of,  McCarty.  34;  Sexton,  45;  35. 
sufficiency  of  statement  of  crime  in,  35. 

must  be  sufficiently  particular,  I^edpingham.  36.  .       -i, 

must  allege  crime  positively,  not  inferentially,  Newhoryport  Bndsre.  87. 
allegation  of  name  in,  Anon.,  40;  James,  41;  Wilson,  41;   IHtui,  42; 

Pprtin^   43 
of  rime  in.  Vane,  44;  Sexton,  45;  Traven..  47;  Johnson.  48;  Beaton, 

49 ;  Dodge,  49. 


978  INDEX. 

INDICTMENT  —  continued. 

allegation  of  place  in,  Napper,  44;  Smith,  46  ;  TolUver,  46  ;  Johnson,  48. 
of  description  of  property,  Mansfield,  50  ;  Noble,  52  ;  Haskins,  53  : 

Clair,  93. 
of  persons.  Stone,  54. 
counts  of.    See  Counts. 
duplicity,  Tuck,  62. 

-whether  insufficiency  of  may  be  waived  by  defendant,  Loud,  72. 
effect  of  mere  recitals  in,  822. 

form  or  requisites  of,  for  common  seller  of  intoxicating  liquor,  Pray,  22. 
common  barretor  or  scold,  24. 

keeping  house  of  ill-fame,  disorderly  house,  gaming  house,  24. 
defect  in  highway,  24. 
night-walker,  Russell,  39. 
murder,  Vaux,  67  ;  966. 
perjury,  Mace,  32  ;  969. 
spreading  infection,  104. 
conspiracy,  158. 

obtaining  by  false  pretences,  160. 
manslaughter,  967. 
larceny,  968. 
burglary,  968. 
nuisance,  968. 
INFANCY,  when  an  excuse  for  crime,  Smith,  276. 
INFANT,  under  fourteen  incapable  of  committing  rape,  140. 
INGROSSING,  818. 

INJURY,  to  the  person.    See  Personal  Injury. 
INQUISITION,  11. 

INSANITY,   when  an  excuse  for  crime,  M'Naghten,  231  ;   Haynes,  234; 
Rogers,  235;  Richards,  238;  Flanagan,  241;  Parsons,  242. 
how  to  be  proved,  Rogers,  235;  254;  Garbutt,  255;  Lawrence,  258. 
INTENT,  alone  does  not  make  crime,  126. 

distinguished  from  motive,  Sheppard,  174;  Sharpe,  175;  Harmon,  180. 
general,  must  concur  with  act  to  create  crime,  220;  Dugdale,  221;  Rid- 
dle, 222;  Asher,  229. 
must  be  concurrent  in  time  with  act,  Morse,  223;  Moore,  224;  Fox, 

227;  Woodward,  763. 
need  not  be  explicitly  averred,  Hersey,  183. 
inferred  from  voluntary  act,  Presnell,  177;  Reynolds,  179. 
to  do  an  act,  whether  applied  to  another  actually  done.     See  Con- 
structive Intent. 
place  of  supplied  by  negligence.     See  Negligence. 
specific,  what  is,  Dobbs,  181;  Boyce,  182  ;  Kelly,  182. 

whether  required   in  statutory  crimes.   Anon.,  284;  Tinkler,  285; 
Tolson,  286;  Myers,   302;    Birney,   303;  Mash,   304;    Boynton, 
306 ;  307  n. ;  Thompson,  308. 
must  be  averred,  184. 
must  be  proved.  Knight,  220. 
to  pass  title.     See  Consent. 
to  steal.     See  Larceny  :  animus  furandi. 
to  embezzle,  Hurst,  716. 


INDKX.  g-g 

l^TE^T  — continued. 

to  cheat  by  false  pretences,  Thomas,  722. 

to  defraud,  Wakeliiig,  757  u. 

See  Insanity;  I.NToxiCATiofc 
INTOXICATING  LIQUOR,  common  seller  of,  IVay  '>o 

JEOPARDY.    See  Former  Conviction  or  Acquittal. 
JOINDER,  of  counts,  Castro,  56  ;  58  n. ;  61  u. 

JURISDICTION,  over  offences  committed  on  board  vessels,  Anderson  895- 
Keyn,  897;  Wildenhus,  925.  '        ' 

over  three-mile  limit,  Keyn,  807  ;  Manchester,  O.'iO. 

over  crime  elsewhere  committed,  how  far  it  may  be  assumed  by  sUtuUj 
Knight,  406;  Carter,  407;  Macloon,  409. 

KILLING,  means  of.     See  Personal  Injurt. 

LABORERS,  statute  of,  819. 
LAND.     See  Realty. 
LARCENY,  definition  of,  488. 

what  property  subject  to,  488,  et  seq. 
part  of  realty.  Anon.,  488. 
charters  touching  land,  Wody,  489. 

wild  animals.  Anon.,  490;  Searing,  491;  Cheafor,  492;  Shickle,  4I>6. 
documents  and  ckoses  in  action,  Watts,  493. 
oysters,  Taylor,  498. 
gas,  Shaw,  .501  ,  White,  506. 
dogs,  Mullaly,  502. 
what  is  an  act  of.     See  Possession. 
by  trick,  Lannan,  521 ;  Middleton,  617;  Pear,  6-13  ;  Bunc^  6.')1 ;  Smith, 

653.     See  Slowly,  516;  Sharpless,  611  ;  Robins,  6r>5;  Little,  6.'.7. 
by   bailee,  Thurborn,   551;    Preston,  557;    Coombs,    .')93 .    lUven.    6.11; 
Leigh,  632;   Banks,  632;   Thristle,  633;   Pratt,    635;    Tunnard,  6-J't, 
Bunce,  651. 
by  breaking  bulk,  Bass,  531  ;  Carrier's  Case,  638 ;  Madoi,  64 1 ;  Popcr, 

643 ;  James,  645. 
by  adulterer.  Toilet,  533  ;  Prince,  660. 
by  killing  wild  animals,  Townley,  577. 

by  severance  from  realty,  Foley,  581  ;  Steimling,  588  ;  Edwards  612. 
from  thief.  Ward,  595. 
by  thief  bringing  into  another  county.  Anon.,  595;  Anon.,  r>0>];  Pmwca. 

597. 
by  thief  bringing  into  another  jurisdiction,  Prowes,  507;  Gardner,  bui; 

Holder,  598  ;  Stanley,  605. 
by  force,  Lovell,  612. 

after  conditional  consent  to  taking.  Hand,  614  ;  Mitrhum.  618. 
in  case  title  passes,  Middleton,  617;  Moort\  6.'>8 ;  Atkinjwn,  600;  Prince, 
660  ;  Buckmaster,  663;  Solomons,  668;  Russett,  671. 


980  INDEX. 

LARCENY  —  continued. 

distinction  between,  and  embezzlement,  O'Malley,  518;  Baaeley,  525; 
Ryan,  543;  Headge,  706;  Berry,  714. 

and  obtaining  by  false  pretences,  628 ;  651 ;  Atkinson,  660 ;  Prince,  660 ; 
Buckmaster,  663 ;  Solomons,  668  ;  Russett,  671;  Adams,  720. 

of  one's  own  property,  Wilkinson,  674 ;  Webster,  676 ;  Adams,  679. 

animus  furandi  necessary  for,  Wilkinson,  674;  Adams,  679;  Cabbage, 
682;  Morfit,  683;  Dickinson,  684;  Crump,  685;  Spurgeon,  685;  Gard- 
ner, 686 ;  Trebilcock,  688  ;  IloUoway,  692  ;  Hall,  696 ;  Beecham,  697. 

■whether  taking  must  be  lucri  causa,  Cabbage,  682. 

from  the  person,  Francis,  699;  Selway,  700. 

from  a  building,  Hartnett,  701 ;  Smith,  703  ;  Lester,  705. 

form  of  indictment  for,  968. 
LOCALITY,  of  crime  where  a  force  put  in  motion  in  one  jurisdiction  takes 
effect  in  another,  Davis,  398 ;   Wyckoff,  399 ;   Gessert,  403 ;  Lindsey, 
404  ;  Macloon,  409  ;  Keyn,  897. 

of  crime  of  accessory,  Wyckoff,  399. 

of  larceny  where  goods  are  taken  by  thief  from  one  place  to  another, 
Anon.,  596;  Prowes,  597;  Gardner,  598;  Holder,  598;  Stanley,  605. 

MALPRACTICE,  contributing  to  death  does  not  excuse  the  killer,  Davis,  171. 
MANSLAUGHTER,  sufficient  provocation,  Stedman,  477;  Fray,  477;  Welsh, 
479;  Maher,  482. 

words,  whether  sufficient  provocation,  Morley,  473;  Roth  well,  481. 

hot  blood  and  cooling-time,  Morley,  473;  Maher,  482. 

resisting  unlawful  arrest,  Thompson,  477. 

interference  of  stranger  to  prevent  unlawful  arrest,  Huggetfc,  474. 

form  of  indictment  for,  967. 
MASTER,  liability  of,  for  servant's  acts  in  nuisance,  Stephens,  845. 

See  Principal. 
MAYHEM,  definition  of,  419. 
MENS  REA,  247  et  seq.,  292  n.,  293  et  seq.,  846. 
MISDEMEANORS,  two,  may  be  tried  together,  59. 
MISNOMER.    See  Name. 
MISTAKE.     See  Ignorance. 
MOTIVE  of  act  not  material,  Sheppard,  l74  ;  Sharpe,  175;  Harmon,  180. 

MURDER,  what  is,  461. 

when  homicide  is.  Greenwood,  424;  Conde,  424. 

in  resisting  arrest,  &c..  Young,  462;  Tomson,  462. 

by  deadly  weapon.  Grey,  463. 

in  commission  of  felony,  Serne,  465. 

in  commission  of  act  dangerous  to  life,  Smith,  468. 

express  malice,  how  proved,  Hadley,  469. 

degrees  of,  471;  Leighton,  472. 

forms  of  indictment  for,  Vaux,  67;  966,  967. 
MUTE,  standing,  12. 

NAME,  allegation  in  indictment  of  prisoner's.  Anon.,  40;  Perkins,  43. 
of  owner  of  property  stolen,  James,  41. 
of  drawer  of  bill,  Wilson,  41. 


INDEX. 


981 


NAME  —  continued. 

mistake  in,  how  far  fatal  to  iiidictineut,  James,  41 ;  Perkim  <3 
idem  sonans,  Wilson,  41  ;  Davis,  41.'.  '       '  ' 

NECESSITY,  when  a  justification  for  crime,  35(3;  lJaml>cr,  3W5;  Dudlrr  3&7- 
Brooks,  364;  W ray,  30t>.  «*  J.  >a' , 

NEGLIGENCE,  what  is  criminal,  in  connection  witli  rcLi  of  commiMJon.  Ihi- 
Chamberlain,  187;  Salmon,  l»i).  '        ' 

in  connection  with  breaches  of  duty  by  failure   to  act.  Fri«i.l    IW- 
Lowe,  192;  Smith,  1^2;   Nicholls,  ly.j;  Downcs,  1;.:,,'  ln.un'  lS*b' 
Pocock,  423  ;  Conde,  424. 
See  CoNTRinuTOKY  Nkgligknck  ;   CoNCDRRK.tr  Neolioi:.'«ce. 
NIGHTWALKER,  indictment  of,  Ku.ssell,  39. 

NUISANCE,  by  offensive    trades,    Ronkett,  842;   Croas,   814;   .MiUfr,  Ma- 
Detroit  White  Lead  Works,  801. 
by  keeping  gunpowder,  Anon.,  843. 
by  noises,  Smith,  844. 
by  obstructing  highway,  Hall,  842. 
by  obstructing  river,  Stephens,  845, 
by  maintaining  lottery,  Jackson,  12L 
by  maintaining  bawdy  or  gambling  house.  King,  847. 
effect  of  length  of  time,  Anon.,  843;  Miller,  Si'J. 
effect  of  prior  establishment,  Anon.,  843;    Cross,  844;  Detroit  WhiU 

Lead  Works,  851. 
master  liable  for  servant's  acts,  Stephens,  845. 
is  such,  though  beneficial  to  public,  Caldwell,  177. 
form  of  indictment  for,  968. 

OYSTERS  are  property,  498. 

whether  subject  of  larceny,  Taylor,  498. 

PARLIAMENTARY  law  part  of  law  of  land,  855. 

PARTICULARITY  required  in  indictment,  Cruikshank,  28  ;  Ledgingham.  38, 

PERJURY,  requisites  of,  970. 

form  of  indictment  for.  Mace,  32,  969. 
PERSONAL  INJURY,  what  sorts  of,  are  indictable,  418  ^-r  neq.  .-  420. 

exposure  to  infection,  Castell  v.  Bambridge,  420;  Green^rood,  424; 

Clarence,  438. 
false  testimony,  McDaniel,  421. 
non -repair  of  way,  Pocock,  423. 
by  withholding  food,  Conde,  424. 

by  fright,  Towers,  425;  Hallid.-iy,  427;  Mnrton,  ilOn    So?  Wing.  119. 
by  exposure  to  weather,  Ilendrickson.  430  ;   Kenshaw,  434. 
aggravated  by  pre-existing  cause,  O'Brien,  433. 
by  poison,  Stratton,  451. 
PLACE,  allegation  of,  in  indictment,  how  far  material,  Napper,  44;  Smith, 

46;  Tolliver,  46;  Johnson,  48. 
POOLS,  Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,  839. 
POSSESSION,  what  is,  505  et  seq. 

what  act  constitutes  taking  of,  Walsh,  505;  White,  506;  Pxlmondi,  511 ; 

Thompson,  513. 
taking  through  innocent  agent,  Barry,  508. 


982  INDEX. 

POSSESSION-  continued. 

how  distinguished  from  mere  custody,  514;  Anon.,  514;  Chissers,  515; 

Slowly,  516;  O'Malley,  518;  Hildebrand,  519;  Lannan,  521;  Sharp- 
less,  611. 
as   between  master  and   servant,    Anon.,  515;  Note,    523;  Notes,  524; 

Ba/eley,  525;  Bass,  531;  Watson,  532;  Lavender,   532;  Nerval,  535; 

Reed,    536;   Ryan,   543;    Robins,    655;   Holloway,    692;    Hall,   696; 

Berry,  714. 
as  between  husband  and  wife.  Toilet,  .533  ;  Prince,  660. 
of  a  finder,  Mucklow,  547;  Merry  v.  Green,  548;  Thurborn,  551 ;  Preston, 

557;  West,   561;   Rowe,  562;    Titus,  563;  Fiulaysou,  565;   Ashwell, 

566 ;  Flowers,  574  ;  Riley,  591. 
of  one  who  kills  wild  animals,  Townley,  577. 
of  one  who  severs  from  realty,  Foley,  581 ;  Steimling,  588. 
of  a  wrongdoer,  Townley,  577  ;  Foley,  581 ;  Riley,  591 ;  Coombs,  593. 
of  a  thief,  Ward,  .595;  Anon.,  595;  Anon.,  596 ;  Holder,  598;  Stanley,  605. 
whether  obtained  by  force,  Lovell,  612. 
whether  obtained  by  mistake,  Ashwell,  566  ;  Middleton,  617  ;  Wolf  stein, 

629. 
PRESENCE  of  prisoner,  14  ;  Schwab  v.  Berggren,  14. 
PRESENTMENT,  11. 
PRINCIPAL,  how  far  responsible  for  agent's  acts,  Parks,  376;  Miller,  759; 

Woodward,  763. 
not  liable  criminally  by  reason  of  ratification,  Morse,  223 ;  Woodward, 

763. 
of  innocent  agent,  responsibility  of,  Vaux,  67 ;  377 ;  Mitchell,  378 ;  Banuen, 

379;  Barry,  508. 
joiut,  Bingley,  381. 

in  second  degree,  Knapp,  383;  Breese,  386. 
and  accessory,  whether  offences  are  identical,  Plant,  79. 

PRISONER  must  not  be  deprived  of  property,  O'Donnell,  10. 
how  to  be  treated  on  arraignment,  12. 
presence  of  at  trial,  14;  Schwab  v.  Berggren,  14. 

RAPE,  definition  of,  419. 

husband  cannot  commit  upon  wife,  446. 

by  fraud,  Barrow,  455;  Dee,  456  n. 

on  unconscious  woman,  Burke,  457. 

boy  under  fourteen  cannot  commit,  140. 
RATIFICATION  of  agent's  crime  will  not  make  principal  criminal,  Morse, 
223 ;  Woodward,  763. 

REALTY,  larceny  cannot  be  committed  of  part  of,  Anon.,  488. 
of  documents  touching,  Wody,  489. 
by  severance  from,  Foley,  581;  Steimling,  588. 
what  is  severance  from,  Edwards,  612. 

RECEIVING  STOLEN  PROPETY,  motive  of  immaterial,  Richardson,  758. 
must  be  by  consent  of  thief,  Wade,  758. 
may  be  by  servant,  Miller,  759. 

by  wife,  Woodward,  763. 
what  is  a  receiving,  Smith,  760. 


LNDLX.  9g3 

RECEIVING   STOLEN  PROPERTY -con/mwrf. 

after  recovery  by  owner,  Dohm,  705. 

or  by  representative  of  owuer,  Schmidt,  7tt9. 

must  be  iu  same  jurisdiction  as  tiiuft,  Carr,  774. 

from  receiver,  Ives,  775. 

knowledge  requisite,  Adams,  777;  White.  77b-,  Leonard.  77B. 
RELIGION,  crimes  against,  Smith,  4G;  Tailor,  00. 
RKPUGNANCY,  18;  Pray,  22. 

ROBBERY,  what  is,  419;  Francis,  609;  Selway,  700. 
RUMOR,  spreading  false,  819. 

SABBATH-BREAKING,  Brown,  19. 
SCOLD,  common,  24. 

SENTENCE,  cumulative,  Castro,  56 ;  61  n. 
SERVANT,  departing  his  service  wronf,'fully,  810. 
SOLICITATION,  when  criminal,  Walsh,  128;  Randolph,  131. 
STATUTES,  passed  iu  England  before   Revolution,  whether  part  of  our 
Common  Law,  2. 

effect  of  repeal  of,  on  pre-existing  law,  Marshall,  6 ;  Churchill,  6. 

rules  for  interpretation  of,  7;  373;  Ilartnett,  701. 

requisites  of  indictment  on,  24;  Perrigo,  27 ;  Cruikshank.  28;  Bean,  88. 

dispensing  with  material  allegation  in  indictment,  uuconstitutioLal,  Har- 
rington, 31 ;  Mace,  32. 
SUICIDE,  criminal.  Mink,  206. 
SURPLUSAGE,  Pray,  22. 

when  not  to  be  rejected,  Noble,  52 ;  Stone,  54. 

THREE-MILE  LIMIT,  jurisdiction  over,  Keyn,  897. 

jurisdiction  may  be  assumed  by  statute,  912 ;  Manchester,  930. 
TIME,  allegation  of,  in  indictment  how  far  material.  Vane,  44  ;  Johncoo,  48. 

must  be  possible,  Sexton,  45. 

of  continuing  crime.  Traverse,  47. 

when  of  essence  must  be  particularly  stated,  Beaton,  49  ;  Dodge,  49. 
TITLE,  effect  of  passing  of,  on  larceny.     See  Larceny. 
TRESPASS,  ab  initio,  one  cannot  be  made  criminal  by  doctrine  of,  Moore,  224. 
TRICK,  larceny  by.      See  Larceny. 
TRUE  BILL,  11. 

VERDICT,  sufficiency  of,  where  indictment  contains  several  counts,  FiUrh- 
burg  Railroad,  63 ;  Claasen,  65. 


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